Amicus Curiae Brief — Neal Bissonnette, et al., Petitioners v. LePage Bakeries Park St., LLC, et al.
Supreme Court briefNov 20, 2023
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No. 23-51
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------NEAL BISSONNETTE and TYLER WOJNAROWSKI,
on behalf of themselves and all others similarly situated,
Petitioners,
v.
LEPAGE BAKERIES PARK ST., LLC,
C.K. SALES CO., LLC, and FLOWERS FOODS, INC.,
Respondents.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Second Circuit
---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE
NATIONAL ACADEMY OF ARBITRATORS
IN SUPPORT OF PETITIONERS
---------------------------------♦--------------------------------MATTHEW W. FINKIN
Professor, College of Law
University of Illinois
504 East Pennsylvania Ave.
Champaign, IL 61820
(217) 333-3884
MFinkin@Illinois.edu
BARRY WINOGRAD
Counsel of Record
Arbitrator & Mediator
875-A Island Dr., No. 144
Alameda, CA 94502
(510) 393-7283
Winmedarb@aol.com
LISE GELERNTER
Arbitrator/Visiting Scholar,
University of Buffalo
School of Law
5500 North Bailey Ave.,
Box 589
Amherst, NY 14226
(716) 913-0574
lise.gelernter@gmail.com
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
To be exempt from the Federal Arbitration Act,
must a class of workers that is actively engaged in interstate transportation also be employed by a company
in the transportation industry?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...................................
i
TABLE OF CONTENTS ......................................
ii
TABLE OF AUTHORITIES .................................
iii
THE INTEREST AND CONCERN OF AMICUS ....
1
INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................
3
ARGUMENT ........................................................
6
1.
As Confirmed by Legislative History and
Decisions of This Court, The Residual
Clause Applies to Those Who Do the Work,
Not for Whom the Work is Done ................
6
2.
Disputes Over Section 1’s Residual Clause
Have Created a Jurisprudential Morass ... 10
3.
A Workable Solution is Available Based on
Existing Substantive Law and Workplace
Practices .................................................... 13
CONCLUSION..................................................... 20
iii
TABLE OF AUTHORITIES
Page
CASES
14 Penn Plaza, LLC v. Pyett, 556 U.S. 247 (2009) .........2
AT&T Technologies, Inc. v. Communications
Workers of America, 475 U.S. 643 (1986) ..................2
Bakery and Pastry Drivers and Helpers Local
802 of the International Brotherhood of Teamsters v. Wohl, 315 U.S. 769 (1942) ...........................17
Bissonnette v. LePage Bakeries, 49 F.4th 655 (2d
Cir. 2022) ......................................... 3, 4, 8, 11, 12, 14
Canales v. CK Sales Co., LLC, 67 F.4th 38 (1st
Cir. 2023) ......................................................... 4, 9, 11
Capriole v. Uber Techs., Inc., 7 F.4th 854 (9th Cir.
2021) ........................................................................10
Carmona v. Domino’s Pizza, LLC, 73 F.4th 1135
(9th Cir. 2023)..........................................................11
Circuit City Stores, Inc. v. Adams, 532 U.S. 105
(2001) .................................. 2-5, 7, 8, 10, 12-16, 18-21
Cunningham v. Lyft, 17 F.4th 244 (1st Cir.
2021) ........................................................................10
Eastern Associated Coal Corp. v. United Mine
Workers, 531 U.S. 57 (2000) ......................................2
Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612 (2019) ...........2
Fraga v. Premium Retail Services Inc., 61 F.4th
228 (1st Cir. 2023) ............................................. 11, 13
Hamrick v. Partsfleet, LLC, 1 F.4th 1337 (11th
Cir. 2021) .................................................................11
iv
TABLE OF AUTHORITIES – Continued
Page
Int’l Bhd. of Teamsters Local 50 v. Kienstra Precast, LLC, 702 F.3d 954 (7th Cir. 2012) .............. 9, 12
Islam v. Lyft, 524 F.Supp.3d 338 (S.D.N.Y. 2021).......10
Lenz v. Yellow Transportation, 431 F.3d 348 (8th
Cir. 2005) ...................................................................9
LePage Bakeries, NLRB Case No. 1-RC-21501
(2002) .......................................................................18
LePage Bakeries, NLRB Case No. 1-RC-21877
(2005) .......................................................................18
Lopez v. Cintas Corp., 47 F.4th 428 (5th Cir.
2022) ........................................................................11
Major League Baseball Players Ass’n v. Garvey,
532 U.S. 504 (2001) ...................................................2
NLRB v. Jones & Laughlin Steel Corp., 301 U.S.
1 (1937) ....................................................................17
National Labor Relations Bd. v. Continental
Baking Co., 221 F.2d 427 (8th Cir. 1955) ................17
New Prime Inc. v. Oliveira, 139 S.Ct. 532
(2019) ........................................................ 8-10, 21, 22
Osvatics v. Lyft, 535 F.Supp.3d 1 (D.D.C. 2021) .........10
Palcko v. Airborne Express, Inc., 372 F.3d 588 (3d
Cir. 2004) .................................................................11
Perez v. Global Airport Sec. Services, Inc., 253
F.3d 1280 (11th Cir. 2001) .......................................11
Rittmann v. Amazon.com, 971 F.3d 904 (9th Cir.
2020) ........................................................................11
v
TABLE OF AUTHORITIES – Continued
Page
Royal Siam Corp. v. Chertoff, 484 F.3d 139 (1st
Cir. 2007) .................................................................16
Singh v. Uber Technologies, Inc., 67 F.4th 550 (3d
Cir. 2023) .................................................................10
Singh v. Uber Technologies, Inc., 939 F.3d 210
(3d Cir. 2019) ...........................................................11
Sw. Airlines Co. v. Saxon, 142 S.Ct. 1783 (2022)..... 2-5,
....................................................... 8-10, 12-15, 19-21
Tenney Engineering, Inc. v. United. Elec. &
Mach. Workers of America, 207 F.2d 450 (3d
Cir. 1953) .................................................................12
Waithaka v. Amazon.Com, 966 F.3 10 (1st Cir.
2020) ........................................................................11
Wallace v. Grubhub Holdings, Inc., 970 F.3d 798
(7th Cir. 2020)..........................................................11
Wright v. Universal Maritime Service Corp., 525
U.S. 70 (1998) ............................................................2
STATUTES
9 U.S.C. § 1 ................................................... 2-10, 12-20
9 U.S.C. § 4 ..................................................................13
9 U.S.C. § 151(2) ..........................................................18
9 U.S.C. § 151(3) ..........................................................18
9 U.S.C. § 151(11) ........................................................18
29 U.S.C. § 151, et seq. ............................................ 3, 17
29 U.S.C. § 203, et seq. ................................................16
vi
TABLE OF AUTHORITIES – Continued
Page
45 U.S.C. § 151, et seq. ............................................ 2, 19
45 U.S.C. § 153(h)........................................................19
45 U.S.C. § 181 ........................................................ 2, 19
Federal Arbitration Act .............. 2-11, 13, 15, 16, 18-21
National Labor Relations Act....................... 2, 3, 17, 18
Railway Labor Act ......................................... 2, 8, 18-20
RULES
Sup. Ct. R. 37.6 .............................................................1
OTHER AUTHORITIES
78 Cong.Rec. 9888-89 (May 29, 1934) .....................17
Alfred Chandler, The Visible Hand: The Managerial Revolution in American Business
(1977) .........................................................................7
Code of Professional Responsibility for Arbitrators of Labor-Management Disputes, at: https://
naarb.org/code-of-professional-responsibility/ .........1
Gladys Gruenberg, Joyce Najita & Dennis Nolan, The National Academy of Arbitrators:
Fifty Years in the World of Work (1997) ....................1
https://naarb.org/guidelines-for-standards-ofprofessional-responsibility-in-mandatoryemployment-arbitration/ ........................................2
https://naarb.org/due-process-protocol/......................2
https://naarb.org/proceedings-database/ ....................1
vii
TABLE OF AUTHORITIES – Continued
Page
https://www.bls.gov/wsp/publications/annualsummaries/pdf/work-stoppages-1934-and1935.pdf ...................................................................17
https://www.bls.gov/ooh/transportation-andmaterial-moving/. (Last modified Sept. 6,
2023.) .......................................................................15
https://www.bls.gov/opub/mlr/2019/article/pdf/
70-years-of-the-occupational-outlook-handbook.
pdf ............................................................................16
https://www.census.gov/library/stories/2019/06/
america-keeps-on-trucking.html. (Last revised
July 27, 2022.) ...........................................................4
https://www.dol.gov/general/aboutdol/majorlaws .......16
Irving Bernstein, The Turbulent Years (1969) ...........17
Matthew W. Finkin, “Workers Contracts” Under
the United States Arbitration Act: An Essay in
Historical Clarification, 17 Berkeley J. Emp.
Lab. Law 282 (1996) .............................................. 6, 7
Matthew W. Finkin, Employment Contracts Under the FAA – Reconsidered, 48 Labor Studies
Journal 329 (1997) ....................................................6
Tamar Meshel, Employment Arbitration: Recent
Developments and Future Prospects, 39 Ohio
State J. Dis. Res. (forthcoming 2024), available at SSRN: https://apers.ssrn.com/sol3/
papers.cfm?abstract_id=4480671 ...........................10
viii
TABLE OF AUTHORITIES – Continued
Page
The Developing Labor Law: The Board, The
Courts, And The National Labor Relations Act
(John E. Higgins ed., 2022) .....................................18
The Railway Labor Act (Douglas W. Hall & Marcus Migliore eds., 2023) ...........................................19
1
THE INTEREST AND CONCERN OF AMICUS1
Amicus National Academy of Arbitrators (NAA)
was founded in 1947 to ensure standards of integrity
and competence for professional arbitrators of workplace disputes, including establishing canons of professional ethics,2 and offering programs promoting the
understanding and practice of arbitration.3 As historians of the Academy observe, it has been “a primary
force in shaping American labor arbitration.”4
Arbitrators elected to Academy membership are
only those with widely accepted practices and scholars
who have made significant contributions to labor and
employment relations. Currently, the Academy has
more than 500 members in the United States and Canada. Members are prohibited from serving as advocates, consultants or associates for parties in the field,
1
Rule 37.6 statement: Counsel of record is the author of this
brief on behalf of amicus. Other members of the organization assisted. No person or entity other than amicus made any monetary
contribution to the preparation or submission of this brief.
2
Gladys Gruenberg, Joyce Najita & Dennis Nolan, The National Academy of Arbitrators: Fifty Years in the World of Work
(1997). A special contribution developed with the Federal Mediation and Conciliation Service and the American Arbitration Association has been The Code of Professional Responsibility for
Arbitrators of Labor-Management Disputes, at: https://naarb.org/
code-of-professional-responsibility/.
3
For the variety of topics discussed by arbitrators and advocates at the Academy’s annual meetings, see https://naarb.org/
proceedings-database/.
4
Gruenberg, et al., Fifty Years in the World of Work, supra,
at 26.
2
and from appearing as expert witnesses on behalf of
labor or management.
The traditional function of labor arbitration has
been to resolve disputes over the interpretation and
application of collective bargaining agreements. More
recently, arbitration has concerned the statutory rights
of employees in the non-union workplace. The NAA has
been a leader in developing professional standards
and due process protections in those proceedings.5 On
several occasions, the NAA as amicus has contributed
briefs to the Court in arbitration cases, including disputes regarding the Federal Arbitration Act (FAA).6 In
particular, the Academy has offered its views in both
Circuit City and Saxon, two cases in which, as in this
proceeding, the residual clause of Section 1 of the FAA
is at issue. As relevant here, NAA members have
decades of experience with transportation disputes
under the Railway Labor Act (RLA) for the heavily
unionized railroad and airline industries,7 and in
labor-management disputes under the National Labor
5
See, e.g., https://naarb.org/due-process-protocol/; https://naarb.
org/guidelines-for-standards-of-professional-responsibility-inmandatory-employment-arbitration/.
6
9 U.S.C. § 1. See, e.g., AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643 (1986); Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998); Eastern Associated
Coal Corp. v. United Mine Workers, 531 U.S. 57 (2000); Circuit City
Stores, Inc. v. Adams, 532 U.S. 105 (2001); Major League Baseball
Players Ass’n v. Garvey, 532 U.S. 504 (2001); 14 Penn Plaza, LLC
v. Pyett, 556 U.S. 247 (2009); Epic Sys. Corp. v. Lewis, 138 S.Ct.
1612 (2019); Sw. Airlines Co. v. Saxon, 142 S.Ct. 1783 (2022).
7
45 U.S.C. § 151, et seq., and § 181, et seq.
3
Relations Act (NLRA).8 In providing the Academy’s
perspective, amicus emphasizes that the organization
supports arbitration as an institution because it is capable, when properly structured across a range of legal
settings, of providing workplace justice in accord with
legislative intent, judicial precedent, and historical
practice.
---------------------------------♦---------------------------------
INTRODUCTION AND
SUMMARY OF ARGUMENT
Amicus NAA supports petitioners in seeking reversal of the Second Circuit’s decision in Bissonnette
v. LePage Bakeries.9 The Academy will show that a
straightforward answer to the question before the
Court can be found in Circuit City v. Adams,10 and in
Southwest Airlines v. Saxon.11 In those decisions the
Court applied the residual clause in Section 1 of the
FAA, which exempts from the statute “seamen and
railroad employees, or any other class of workers engaged in foreign or interstate commerce.”12
In doing so, the Court determined that transportation workers are excluded from the FAA. In this case,
respondent is asking the Court to add another element
to the statutory text by arguing that, as the Second
8
29 U.S.C. § 151, et seq.
49 F.4th 655 (2d Cir. 2022).
10
Circuit City, supra, 532 U.S. 105 (2001).
11
Saxon, supra, 142 S.Ct. 1783 (2022).
12
9 U.S.C. § 1.
9
4
Circuit held, the residual clause applies only in the
“transportation industry.” However, adding a “transportation industry” precondition would rewrite and
narrow the residual clause to read, “or any other class
of workers engaged in foreign or interstate commerce
in the transportation industry.”
If the FAA is revised in this manner, it would disrupt administration of the U.S. transportation system
by creating conflicts with existing substantive laws,
notably affecting millions who drive for a living.13 Drivers not only work for freight-hauling companies such
as the United Parcel Service and Federal Express, but
also for the fleets of national retailers such as Amazon,
Wal-Mart, Target, and others. Regional deliveries for a
variety of consumer products also will be affected, as
in this proceeding.
After new ground was broken by Circuit City and
Saxon, perhaps it is not surprising that a jurisprudential morass has developed for parties and courts considering Section 1’s residual clause. This dispute is a
clear example of such confusion. Here, Flowers Foods,
the parent company, faces conflicting rulings from two
neighboring courts of appeals concerning the same
work; that is, drivers delivering the company’s products.14
13
https://www.census.gov/library/stories/2019/06/americakeeps-on-trucking.html. (Last revised July 27, 2022.)
14
Compare Bissonnette v. LePage Bakeries Park St., LLC, 49
F.4th 655 (2d Cir. 2022) with Canales v. CK Sales Co., LLC, 67
F.4th 38 (1st Cir. 2023).
5
As a result, drivers in Massachusetts are subject
to one rule while drivers in Connecticut are subject to
another. The happenstance of a state line should not
yield different readings of the FAA.
To assist the Court, the Academy proposes a workable solution by drawing upon substantive laws governing the American workplace that have long applied
to transportation workers. This will bring greater coherence and predictability to the administration of
the FAA’s residual clause, and will limit potential conflicts with other laws. As a result, employers, workers,
courts and arbitrators will benefit. This solution places
heightened emphasis on the phrase “class of workers”
in Section 1’s residual clause consistent with existing
sources of positive law.
When courts decide who is an exempt transportation worker under Circuit City and Saxon, judges
are at risk of becoming de facto personnel officials,
obliged to review job descriptions, assignment schedules, freight manifests, location tracking data, and other
transportation evidence, to decide whether highly differentiated subcategories of workers are subject to the
FAA. Imposing this hyper-technical task on the courts
is contrary to the phrasing of the FAA’s residual
clause. Instead, the Academy offers a workable solution for applying that provision.
---------------------------------♦---------------------------------
6
ARGUMENT
1. As Confirmed by Legislative History and
Decisions of This Court, The Residual
Clause Applies to Those Who Do the Work,
Not for Whom the Work is Done.
Section 1 states that the FAA does not apply “to
contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or
interstate commerce.”15 The FAA was adopted in 1925
as a procedural reform to ensure the enforcement of
executory arbitration agreements. The plain text of
Section 1 exempts classes of workers, not enterprises in
the transportation industry. The statutory choice of
words is meaningful, as demonstrated by the FAA’s
legislative history and the exemption’s context, which
focused on resolving commercial disputes.16
The Section 1 exemption was rooted in objections
made by labor unions led by Andrew Fursueth of the
Seamen’s Union, who also was the lobbyist for the
American Federation of Labor. Fursueth’s concern,
shared by other labor officials, was expressed to the
Senate committee marking up the bill, and dealt with
the law’s potential effect on workers. Specifically, he
proposed a drafting change to exempt all workers engaged in procuring and making products as well as in
15
9 U.S.C. § 1.
Matthew W. Finkin, “Workers Contracts” Under the United
States Arbitration Act: An Essay in Historical Clarification, 17
Berkeley J. Emp. Lab. Law 282 (1996); Matthew W. Finkin, Employment Contracts Under the FAA – Reconsidered, 48 Labor
Studies Journal 329 (1997).
16
7
their delivery and transport.17 Secretary of Commerce
Herbert Hoover advanced the final language that became the residual clause in Section 1.18
The Court first construed Section 1’s residual clause
in Circuit City. While the residual clause could be read
to cover all classes of workers, the Court applied the
doctrine of ejusdem generis to conclude that the residual clause excludes only “transportation workers.”19
Circuit City’s analysis meant that the FAA’s transportation worker exception in Section 1 did not cover either
the retail store employee in that case or employees
generally. The determining factor in Circuit City was
how the exclusionary phrase in Section 1 should be understood; that is, broadly or narrowly.20
The Court adopted a narrow reading. Central to
the Circuit City decision is the Court’s reasoning that
17
Finkin, Workers’ Contracts, supra, at 289.
Id. at 297. Reading Section 1’s residual clause to cover
workers beyond the transportation industry is consistent with the
evolving structure of American industry more than a century ago
during a period of industrial consolidation and vertical integration. Alfred Chandler, The Visible Hand: The Managerial Revolution in American Business (1977). For example, many companies,
“including the meatpacking, brewing, cotton oil, and sugar companies, owned their own ships, fleets of railway cars, and other
transportation equipment.” Id. at 350. Oil, chemical and steel enterprises also had ships, rail cars and other transportation facilities. (Id. at 352, 355, 360.)
19
Circuit City, supra, 532 U.S. 105 (2001).
20
Id. at 115-116, distinguishing the broad scope of “affecting
commerce” and “involving commerce” for enforcement under Section 2 of the FAA from the more narrow scope of the exclusion for
those “engaged in commerce” under Section 1.
18
8
Congress crafted the residual clause to protect dispute
resolution systems already established, and those soon
to be developed, citing in particular the Transportation
Act of 1920, and the RLA enacted in 1926 and amended
in 1936.21
Since Circuit City, the Court has ruled on Section
1’s residual phrase in two other cases. In New Prime v.
Oliveira in 2019, the Court unanimously found that
truck drivers treated as independent contractors were
excluded from coverage as “workers” even though they
were not classified as employees.22 And in Saxon in
2022, the Court, again unanimously (with Justice Barrett not participating), ruled that ramp agent supervisors who load and unload baggage on planes, but who
do not cross state borders, were excluded from the
FAA.23 In Saxon, the Court prescribed a two-step analysis to assess the actual work performed by employees,
and whether, by such work, the employees were engaged in interstate commerce.
As the dissenting opinion in Bissonnette demonstrates, the company’s delivery drivers perform on a
daily basis the quintessential functions of transportation work by bringing company products to market.24
The teaching of the Court’s Section 1 decision in
Saxon is particularly apt, with the Court finding that
21
Id. at 120.
New Prime Inc. v. Oliveira, 139 S.Ct. 532 (2019).
23
Saxon, supra, 142 S.Ct. 1783 (2022).
24
Bissonnette, supra, 49 F.4th at 667.
22
9
Saxon, a baggage handler and supervisor, was exempt
because she was a “member of a ‘class of workers’
based on what she does at Southwest, not what Southwest does generally.”25 The lesson from Saxon is that it
is what drivers do, not whose products they carry, that
exempts them from FAA coverage. Accordingly, drivers
for Flowers Foods are members of a class of workers
transporting goods for the company; their status is not
based on what Flowers Foods “does generally.”
As the Court stated in Saxon, the FAA’s use of the
term “workers” in the residual clause “directs the interpreter’s attention to ‘the performance of work,’ ” and
the statute’s use of “engaged” “emphasizes the actual
work that the members of the class, as a whole, typically carry out.”26 If the Second Circuit’s transportation industry test is approved, long-haul truck drivers
who transport goods for Amazon, an online retail marketplace, or Macy’s, a retail department store, would
not be exempt because they deliver goods for businesses in the retail industry. This interpretation not
only would be at odds with this Court’s decisions, but
also with decisions of circuit courts that have found
that an interstate truck driver is “[i]ndisputably . . . a
transportation worker under §1 of the FAA.”27
25
Saxon, supra, 142 S.Ct. at 1788.
Id., quoting New Prime, supra, 139 S.Ct at 541.
27
Lenz v. Yellow Transportation, 431 F.3d 348, 351 (8th Cir.
2005). See also Canales v. CK Sales Co., LLC, supra, 67 F.4th 38,
45-46; Int’l Bhd. of Teamsters Local 50 v. Kienstra Precast, LLC,
702 F.3d 954, 957 (7th Cir. 2012) (“a trucker is a transportation
26
10
2. Disputes Over Section 1’s Residual Clause
Have Created a Jurisprudential Morass.
The Second Circuit’s misreading of the FAA and
this Court’s opinions demonstrates, as have other cases,
that lower courts would benefit by further guidance on
how to decide whether a worker is exempt from the
FAA. An examination of the evolving law regarding the
exception crafted in Circuit City, and refined in New
Prime and Saxon, reveals a confusing morass of lower
court decisions. As Section 1 litigation has unfolded,
disputes have arisen over what is essentially the same
kind of work; that is, people who drive or who otherwise support the performance of transportation work.
Examples are offered here to illustrate this point.28
Some decisions have focused on traveling across
state lines as a measure, often with qualifiers such as
how frequent, how far, and how long workers undertake such activity.29 Courts also have examined where
workers are placed in the supply chain, as “last leg”
worker regardless of whether he transports his employer’s goods
or the goods of a third party”).
28
A comprehensive review of inconsistent and problematic
Section 1 outcomes is provided in Tamar Meshel, Employment
Arbitration: Recent Developments and Future Prospects, 39 Ohio
State J. Dis. Res. (forthcoming 2024), available at SSRN: https://
papers.ssrn.com/sol3/papers.cfm?abstract_id=4480671.
29
Compare Singh v. Uber Technologies, Inc., 67 F.4th 550 (3d
Cir. 2023), Cunningham v. Lyft, 17 F.4th 244 (1st Cir. 2021), Capriole v. Uber Techs., Inc., 7 F.4th 854 (9th Cir. 2021) and Osvatics
v. Lyft, 535 F.Supp.3d 1 (D.D.C. 2021) with Islam v. Lyft, 524
F.Supp.3d 338 (S.D.N.Y. 2021).
11
drivers,30 or as drivers from in-state warehouses to
franchise stores,31 or as food delivery drivers from local
restaurants to customers,32 or as drivers for hire who
carry passengers from one location to another,33 or, as
here, as drivers who distribute goods made in one state
for pickup and delivery to ultimate destinations in another state.34
Other cases concern work that supports transportation activity or is ancillary to such work; for example,
an airport pre-departure security agent,35 or a field service supervisor monitoring driver performance.36 In
still other cases, courts have wrestled with whether the
FAA contemplates a dividing line between passengers
and goods,37 or if a trucker is a transportation worker,
30
Compare Waithaka v. Amazon.Com, 966 F.3 10 (1st Cir.
2020); Rittmann v. Amazon.com, 971 F.3d 904 (9th Cir. 2020), and
Fraga v. Premium Retail Services Inc., 61 F.4th 228 (1st Cir. 2023)
with Hamrick v. Partsfleet, LLC, 1 F.4th 1337 (11th Cir. 2021).
31
Compare Carmona v. Domino’s Pizza, LLC, 73 F.4th 1135
(9th Cir. 2023) with Lopez v. Cintas Corp., 47 F.4th 428 (5th Cir.
2022).
32
Wallace v. Grubhub Holdings, Inc., 970 F.3d 798 (7th Cir.
2020).
33
See n. 29, supra.
34
Compare Bissonnette v. LePage Bakeries Park St., LLC, supra, 49 F.4th 655 with Canales v. CK Sales Co., LLC, supra, 67
F.4th 38.
35
Perez v. Global Airport Sec. Services, Inc., 253 F.3d 1280
(11th Cir. 2001).
36
Palcko v. Airborne Express, Inc., 372 F.3d 588 (3d Cir. 2004).
37
Singh v. Uber Technologies, Inc., 939 F.3d 210 (3d Cir.
2019).
12
whether transporting goods for an employer or a third
party.38
Terms the Court used in Circuit City and in Saxon,
offered as helpful modifiers to describe work covered
by Section 1’s residual clause, unfortunately appear
to have had an opposite effect, underscoring the linedrawing headaches for those seeking clarity. These
terms highlight the proximity of workers to commerce;
for example, direct, necessary, actively engaged, and
intimately involved, among others.39 As shown by the
litigation history for Section 1 cases, these terms do not
provide clear direction for employers, for workers or for
courts when assessing workplace policies and practices. Bissonnette has raised a new question as to the
type of industry in which a worker works.
The Academy’s perspective is that, in the absence
of this Court providing corrective guidance, years of
piecemeal litigation are likely to persist. Increasingly,
courts will conduct threshold hearings and trials to determine whether arbitration is warranted for employees who claim to be transportation workers and for
38
Int’l Bhd. of Teamsters Local 50 v. Kienstra Precast, LLC,
702 F.3d at 954, 957 (7th Cir. 2012).
39
These terms, used in several passages in Circuit City and
Saxon, recall the analysis of Section 1’s residual clause in Tenney
Engineering, Inc. v. United. Elec. & Mach. Workers of America, 207
F.2d 450, 452 (3d Cir. 1953) (residual clause applies only to “ . . .
those other classes of workers who are likewise engaged directly
in commerce, that is, only those other classes of workers who are
actually engaged in the movement of interstate or foreign commerce or in work so closely related thereto as to be in practical
effect part of it”).
13
employers asserting they are not in the transportation industry.40 The Academy believes that preserving
the professional value and efficacy of arbitration, and
avoiding conflict with other substantive laws governing the workplace, is undermined by ongoing uncertainty over how Section 1’s residual clause should be
applied.
3. A Workable Solution is Available Based on
Existing Substantive Law and Workplace
Practices.
A workable solution is available to deal with continuing confusion about Section 1’s residual clause. One
option would return to the plaintiff ’s position and that
of the dissent in Circuit City favoring a Section 1 exclusion of all workers from FAA enforcement. Although
there is scholarship on FAA history that points to this
conclusion, the majority in Circuit City held otherwise,
finding the legislative record too sparse.41
Amicus, however, does not propose to overrule
Circuit City, or to modify Saxon, but to assist with
their consistent application. To do so, the Academy
suggests a reorientation of the Court’s Section 1 jurisprudence, away from applying the FAA as a type of employment statute. Instead, the Academy urges reliance
40
Fraga v. Premium Retail Services, Inc., 61 F.4th 228, 237
(1st Cir. 2023); Section 4 of the FAA allows for summary disposition or for jury trials when “the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in
issue. . . .” (9 U.S.C. § 4.)
41
Circuit City, supra, 532 U.S. at 120.
14
on substantive employment and labor laws that have
long determined classes of workers within the interstate nature of the American workplace, including
transportation workers. In this manner, the Academy
offers a road map out of the jurisprudential morass in
the wake of the Court’s Section 1 decisions.
The road map includes, as shown above, the Court’s
reinforcement in this case that the transportation
worker exemption is based on the work undertaken,
not the industry for which it is performed. Although
the record established in Bissonnette that the company’s drivers traveled extensively in distributing outof-state products to customers in another state, the
Second Circuit held that the drivers were not exempt
transportation workers because the company is in a
bakery business, not a transportation business. By using a “transportation industry” test, the Second Circuit
was not examining actual work performed by the class
of workers at issue – that is, workers transporting company products – as instructed by Saxon.
Beyond reinforcing this point, the road map proposed by amicus illuminates the content of the transportation worker exemption by reference to relevant
statutory sources and practices that already identify
transportation work. Circuit City’s construction of the
residual clause was tied to an analysis of the scope or
breadth of the clause in limiting its reach to transportation workers. But once that task was accomplished –
assessing whether the scope of the residual phrase covers all workers or only transportation workers – another analysis was required to determine the content
15
of “any other class” of transportation workers. In
Saxon, the Court provided initial direction by approving a general test for content, stating that membership
in a transportation “class of workers” is based on what
the employee does and not the employer’s general business.42
To more precisely determine the content of work
excluded under Section 1, amicus emphasizes the importance of substantive law and historical practice derived from workplace experience by reference to U.S.
employment and labor laws developed when the FAA
was enacted, or soon after, as Circuit City instructs.
Within this framework, there are a number of guideposts to the content of “any other class of workers” to
be excluded from the FAA. In this respect, the Academy
notes that the word “class” is a statutory modifier with
a broader meaning than “job,” “position,” “function,”
“occupation,” or even “classification,” words that are
not found in the FAA. Three examples are offered as
sources shedding light on who is in “any other class of
workers.”
A first relevant source is the highly refined analysis of the American workplace provided by the Occupational Outlook Handbook issued by the United States
Department of Labor (DOL Handbook).43 The DOL’s
Handbook is an important aspect of the agency’s work,
which includes responsibility for enforcing the Fair
42
Saxon, supra, 142 S.Ct. at 1788.
https://www.bls.gov/ooh/transportation-and-material-moving/.
(Last modified Sept. 6, 2023.)
43
16
Labor Standards Act44 and other employment laws
and policies.45
The Handbook began as a DOL project in the
1930s and was formally in place a decade later to assist
veterans and others as the economy emerged from
the Second World War.46 It served then, and still does,
to offer career guidance and a comprehensive understanding of the workplace by drawing upon position
profiles, job duties, and compensation, among other
features of work.
For Section 1 disputes, the DOL’s analysis, as applied here, clarifies who is an FAA-exempt transportation worker by identifying who is in this class; namely,
air traffic controllers, pilots and flight attendants, bus
drivers, delivery truck and sales drivers, hand laborers
and material movers, material moving machine operators, heavy truck and tractor-trailer drivers, railroad
workers, taxi, shuttle and chauffeur drivers, and water
transportation workers. In all, millions of U.S. workers
transport people or things, or directly assist those who
do. As such, the DOL’s list of occupations, taken together, encompasses a class of transportation workers
who, based on the FAA’s text and Circuit City, could be
44
29 U.S.C. § 203, et seq.
https://www.dol.gov/general/aboutdol/majorlaws. The Handbook also is used by agencies and courts as a source of expert information. (See, e.g., Royal Siam Corp. v. Chertoff, 484 F.3d 139,
145-147 (1st Cir. 2007) (relying on Handbook to decide non-immigrant work visa).
46
https://www.bls.gov/opub/mlr/2019/article/pdf/70-years-ofthe-occupational-outlook-handbook.pdf.
45
17
deemed exempt from arbitration enforcement under
Section 1’s residual clause.
A second example the Court can draw upon for a
Section 1 road map is precedent under the NLRA.47
The NLRA, as a substantive federal law that applies
to private sector employment generally, was enacted,
in part, to deal with labor strife in transportation,
and covers drivers and other transportation-related
workers.48 Bakery-sales drivers are among the many
transportation workers subject to the NLRA from its
early years.49 Indeed, the National Labor Relations
Board (NLRB) has determined that respondent’s route
47
29 U.S.C. § 151, et seq.
The NLRA was passed in a period of widespread labor unrest in 1934 and 1935, particularly strikes involving truck drivers
in Minneapolis and dockworkers in San Francisco, that increased
concerns over industrial peace and efforts to promote a statutory
means of resolving labor disputes. (Irving Bernstein, The Turbulent Years, at pp. 217-351 (1969).) As one example, Rep. William
Connery, a sponsor with Sen. Robert Wagner of the NLRA, expressly referred to truck driver and dockworker strikes in May
1934 in urging adoption of new labor legislation. (78 Cong.Rec.
9888-89 (May 29, 1934).) A DOL analysis shows the significant
scale of transportation-related strikes in 1934. (https://www.bls.
gov/wsp/publications/annual-summaries/pdf/work-stoppages-1934and-1935.pdf.)
49
See, e.g., Bakery and Pastry Drivers and Helpers Local 802
of the International Brotherhood of Teamsters v. Wohl, 315 U.S.
769 (1942); National Labor Relations Bd. v. Continental Baking
Co., 221 F.2d 427 (8th Cir. 1955). This application of the NLRA is
consistent with the seminal decision of NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. 1 (1937). In that case, the Court applied the
NLRA to a steel company with an integrated transportation network employing more than 80,000 workers. (Id. at 26-27.)
48
18
drivers would be an appropriate unit for collective representation.50
Unlike the evolving law under the FAA’s residual
clause, transportation workers under the NLRA are
not parsed into a series of discrete occupational subcategories depending on how much or how long workers are in transit, or their placement in a supply
chain. Instead, the NLRA’s jurisdictional reach is
limited by Congress’s statutory definitions for “employee” and “employer,” such as who is a supervisor,51
and by the business volume thresholds established by
the NLRB.52 For example, workers providing interstate
transportation services for passengers or goods, or essential links in such services, are subject to the NLRA,
except that coverage is limited to businesses exceeding
$50,000 in gross annual volume.53
A third example to assist in determining the content of the Section 1 exclusion is the RLA, a key statute
shaping the majority’s reading of the FAA in Circuit
City. Those subject to the RLA as “railroad employees”
constitute a specific “class of workers” expressly listed
in the FAA’s residual clause, whether working with
50
See LePage Bakeries, NLRB Case No. 1-RC-21501 (2002);
LePage Bakeries, NLRB Case No. 1-RC-21877 (2005).
51
9 U.S.C. § 151(2), (3), (11).
52
The Developing Labor Law: The Board, The Courts, And
The National Labor Relations Act, ch. 27 (John E. Higgins ed.,
2022) (ebook).
53
Id., § 27.IV.B.
19
railroads or airplanes.54 While the RLA applies to those
workers, its relevance to this proceeding is amplified
because the statute reflects a broad understanding of
the content of transportation work as covering many
workers who are not obviously on trains or planes, or
loading them.55 In this respect, the RLA is instructive
regarding transportation-related work for those who
are not in the transportation industry, as in this case.56
Unfortunately, the Court’s rejection of an airline industry basis for the Section 1 exclusion in Saxon can be
54
Section 151 of the RLA defines an “employee” as “every
person . . . who performs any work” for a carrier covered by the
statute. (45 U.S.C. § 151, Fifth.) Section 181 covers “every air pilot
or other person who performs any work as an employee or subordinate official of such carrier.” (45 U.S.C. § 181.) Section 181 also
states that air carriers and their employees are “engaged in interstate or foreign commerce,” text which parallels the FAA exemption. (Id.)
55
The breadth of the RLA’s application to covered workers
tracks the Esch-Cummins Transportation Act of 1920, cited favorably by the Court in Circuit City, supra, 532 U.S. at 120. That legislation in Section 400(3) defined “transportation” as including,
. . . all services in connection with the receipt, delivery,
elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported. (41 Stat. 456, 475; emphasis added.)
56
Under 45 U.S.C. Section 153(h), the RLA covers not only
those working on train cars, but also yard-service personnel, machinists, coach cleaners, shop laborers, and store employees,
among others. For employees of air carriers, there are currently
several positions subject to the RLA in addition to those directly
involved in flying, including engineers, mechanics, fleet and passenger service staff, office clerical, dispatchers, and instructors.
(The Railway Labor Act, § 4.II.E.2 (Douglas W. Hall & Marcus
Migliore eds., 2023) (ebook).)
20
read, mistakenly, to reject the class of workers covered
by the RLA or engaged in analogous work.57
The examples offered by the Academy are not the
only potential sources to assist in determining the content of the Section 1 transportation worker exclusion.
Guidance also may be drawn from wage and hour, discrimination, health and safety, workers’ compensation,
and other substantive fields of law. Amicus knows from
the experience of its members that American law is
rich in the detail it provides about who is engaged in
transportation work in a variety of employment fields.
This well-established detail offers a solid foundation to
determine the content of the Section 1 exemption,
without turning to the FAA as a substitute employment law, something the statute was never intended to
be. For amicus, these traditional sources of law can provide prima facie support for a presumption that an
exemption is warranted under Section 1’s residual
clause.
---------------------------------♦---------------------------------
CONCLUSION
Circuit City delineated the scope of Section 1’s residual clause by excluding transportation workers, and
not all workers. Congress could decide otherwise, but
it has not. Saxon assisted in determining the content
of Section 1’s exclusion by placing the focus on actual
work performed and on engagement in commerce, and
by deciding that an industry-based exception was at
57
Saxon, supra, 142 S.Ct. at 1790-1791.
21
odds with the FAA. In the aftermath of Circuit City
and Saxon, courts and litigants have struggled to refine the content of the exclusion. Amicus proposes that
a workable solution for this difficulty can be found in
already-existing substantive laws governing the workplace that apply to transportation workers.
The Academy acknowledges that there will be a
measure of litigation if the Court clarifies the transportation worker exemption as proposed here. Some
amount of line-drawing will continue; for example, disputes about what is transportation or transportationrelated work, or over who is covered by a statute. But,
even so, if the Academy’s perspective is adopted, courts
and parties will have well-established substantive law
and practice to guide decision-making, and they will be
spared the seemingly never-ending task of defining the
content of the residual clause. They also will be spared
potential conflicts that can arise between the procedural reach of the FAA and substantive legal doctrine
in the American workplace.
The Court’s cautionary reminder in New Prime applies here. Respondent seeks refuge in FAA policy because it is “[u]nable to squeeze more from the statute’s
text.”58 As in New Prime, the Court in making its antecedent statutory inquiry should refrain from exercising its authority to “pave over bumpy statutory texts
58
New Prime, supra, 139 S.Ct. at 543.
22
in the name of more expeditiously advancing a policy
goal.”59
Date: November 20, 2023
Respectfully submitted,
MATTHEW W. FINKIN
Professor, College of Law
University of Illinois
504 East Pennsylvania Ave.
Champaign, IL 61820
(217) 333-3884
MFinkin@Illinois.edu
BARRY WINOGRAD
Counsel of Record
Arbitrator & Mediator
875-A Island Dr., No. 144
Alameda, CA 94502
(510) 393-7283
Winmedarb@aol.com
LISE GELERNTER
Arbitrator/Visiting Scholar,
University of Buffalo
School of Law
5500 North Bailey Ave.,
Box 589
Amherst, NY 14226
(716) 913-0574
lise.gelernter@gmail.com
59
Id.
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.