Amicus Curiae Brief — Flowers Foods, Inc., et al., Petitioners v. Angelo Brock

No. 24-935

In the

Supreme Court of the United States

FLOWERS FOODS, INC., et al.,

Petitioners,

v.

ANGELO BROCK,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Tenth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ACADEMY OF ARBITRATORS

IN SUPPORT OF RESPONDENT

Lise Gelernter

Arbitrator/Visiting Scholar

University of Buffalo

School of Law

5500 North Bailey Avenue,

Box 589

Amherst, NY 14226

Joshua M. Javits

Arbitrator & Mediator

President, National Academy of

A rbitrators

700 New Hampshire Avenue, NW,

Suite 416

Washington, DC 20037

120809

Barry Winograd

Counsel of Record

Arbitrator & Mediator

875-A Island Drive,

No. 144

Alameda, CA 94502

(510) 393-7283

winmedarb@aol.com

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

Are workers who deliver locally goods that travel

in interstate commerce—but who do not transport the

goods across borders nor interact with vehicles that cross

borders—“transportation workers” “engaged in foreign

or interstate commerce” for purposes of the Federal

Arbitration Act’s § 1 exemption?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST AND CONCERN OF AMICUS . . . . . . . . 1

I N T RODUC T ION A N D SU M M A RY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1.

As Confirmed by Decisions of This Court,

Section 1’s Residual Clause Exempts

Transportation Workers Engaged In

Interstate Commerce . . . . . . . . . . . . . . . . . . . . . . . 8

2.

Lower Court Disputes Over Section

1’s Residual Clause Reflect Continued

Differences About its Application . . . . . . . . . . . 12

3.

A Workable Approach is Available Based

on Substantive Employment and Labor

Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

iii

TABLE OF CITED AUTHORITIES

Page

Cases

14 Penn Plaza, LLC v. Pyett,

556 U.S. 247 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Adler v. Gruma Corp.,

135 F.4th 55 (3d Cir. 2025) . . . . . . . . . . . . . . . . . . . . . 14

A.H. Phillips, Inc. v. Walling,

340 U.S. 490 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Ash v. Flowers Foods, Inc.,

2024 WL 1329970 (5th Cir. 2024) . . . . . . . . . . . . . . . 20

AT&T Technologies, Inc. v.

Communications Workers of America,

475 U.S. 643 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Aguiluz v. Flowers Foods, Inc.,

2024 WL 5251179 (C.D. Ca. 2024) . . . . . . . . . . . . . . . 21

Bakery & Pastry Drivers & Helpers Loc. 802 of

Int’l Bhd. of Teamsters v. Wohl,

315 U.S. 769 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Baltimore & O. S. W. R. Co. v. Burtch,

263 U.S. 540 (1924) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Baltimore & O.S.W.R. Co. v. Settle,

260 U.S. 166 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iv

Cited Authorities

Page

Bissonnette v. LePage Bakeries Park St., LLC,

601 U.S. 246 (2024) . . . . . . . . . 2, 5, 10, 11, 16, 17, 27, 28

Brock v. Flowers Foods, Inc.,

121 F.4th 753 (10th Cir. 2024) . . . . . . . . . . . . . . . . 3, 12

Cabell v. Markham,

148 F.2d 737 (2d Cir. 1945),

aff’d, 326 U.S. 404 (1945) . . . . . . . . . . . . . . . . . . . . . . 29

Canales v. CK Sales Co., LLC,

67 F.4th 38 (1st Cir. 2023) . . . . . . . . . . . . . . . . . . . . . . 15

Capriole v. Uber Techs., Inc.,

7 F.4th 854 (9th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 13

Carmona Mendoza v. Domino’s Pizza, LLC,

73 F.4th 1135 (9th Cir. 2023) . . . . . . . . . . . . . . . . . . . 13

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) . . . 2, 5, 8, 9, 12, 16, 17, 23, 25, 26, 28

Cunningham v. Lyft, Inc.,

17 F.4th 244 (1st Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 13

Delpro Co. v. Broth. Ry. Carmen of U.S. &

Canada, AFL-CIO,

676 F.2d 960 (3d Cir. 1982) . . . . . . . . . . . . . . . . . . . . . 25

Dist. 6 Int’l Union of Indus. v.

National Mediation Board of U.S.,

139 F.Supp.2d 557 (S.D.N.Y. 2001) . . . . . . . . . . . . . . 25

v

Cited Authorities

Page

Eastern Associated Coal Corp. v.

United Mine Workers,

531 U.S. 57 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fli-Lo Falcon, LLC v. Amazon.com, Inc.,

97 F.4th 1190 (9th Cir. 2024) . . . . . . . . . . . . . . . . . . . 14

Flowers Baking Co., Inc.,

240 NLRB 870 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . 27

Flowers Baking Co.,

169 NLRB 738 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . 27

Flowers Baking Co.,

161 NLRB 1429 (1966) . . . . . . . . . . . . . . . . . . . . . . . . 27

Fraga v. Premium Retail Services, Inc.,

61 F.4th 228 (1st Cir. 2023) . . . . . . . . . . . . . . . . . . 13, 15

Gulf Oil Corp. v. Copp Paving Co.,

419 U.S. 186 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Hamrick v. Partsfleet, LLC,

1 F.4th 1337 (11th Cir. 2021) . . . . . . . . . . . . . . . . . . . . 13

In Re Flowers Foods, Inc. Sec. Litig.,

2018 WL 1558558 (M.D. Ga. 2018) . . . . . . . . . . . . 6, 15

vi

Cited Authorities

Page

Int’l Bhd. of Teamsters Loc. Union No. 50 v.

Kienstra Precast, LLC,

702 F.3d 954 (7th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 15

Islam v. Lyft, Inc.,

524 F.Supp.3d 338 (S.D.N.Y. 2021) . . . . . . . . . . . . . . 13

Lenz v. Yellow Transp.,

431 F.3d 348 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 15

LePage Bakeries,

NLRB Case No. 1-RC-21501 (2002) . . . . . . . . . . . . . . . . 27

LePage Bakeries,

NLRB Case No. 1-RC-21877 (2005) . . . . . . . . . . . . . . . . 28

Lopez v. Aircraft Serv. Int’l, Inc.,

107 F.4th 1096 (9th Cir. 2024) . . . . . . . . . . . . . . . . . . 14

Lopez v. Cintas Corp.,

47 F.4th 428 (5th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 13

Major League Baseball Players Ass’n v. Garvey,

532 U.S. 504 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

McLeod v. Threlkeld,

319 U.S. 491 (1943) . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

N.L.R.B. v. Jones & Laughlin Steel Corp.,

301 U.S. 1 (1937) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

vii

Cited Authorities

Page

Nat’l Lab. Rels. Bd. v. Cont’l Baking Co.,

221 F.2d 427 (8th Cir. 1955) . . . . . . . . . . . . . . . . . . . . 26

New Prime Inc. v. Oliveira,

586 U.S. 105 (2019) . . . . . . . . . . . . . . . . . . 10, 16, 28-30

Noll v. Flowers Foods, Inc.,

442 F.Supp.3d 345 (D. Me. 2020) . . . . . . . . . . . . . . . . 21

Ortiz v. Randstad Inhouse Services,

95 F.4th 1152 (9th Cir. 2024) . . . . . . . . . . . . . . . . . . . 13

Osvatics v. Lyft, Inc.,

535 F.Supp.3d 1 (D.D.C. 2021) . . . . . . . . . . . . . . . . . . 13

Palcko v. Airborne Express, Inc.,

372 F.3d 588 (3d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 14

Perez v. Global Airport Sec. Services, Inc.,

253 F.3d 1280 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . 14

Philadelphia & R.R. Co. v. Hancock,

253 U.S. 284 (1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Rearick v. Com. of Pennsylvania,

203 U.S. 507 (1906) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Rittmann v. Amazon.com, Inc.,

971 F.3d 904 (9th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 13

Second Employers’ Liability Cases,

223 U.S. 1 (1912) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

viii

Cited Authorities

Page

Silva v. Schmidt Baking Distribution, LLC,

2025 WL 3703088 (2d Cir. Dec. 22, 2025) . . . . . . . . 14

Singh v. Uber Techs., Inc.,

939 F.3d 210 (3d Cir. 2019) . . . . . . . . . . . . . . . . . . 13, 14

Stafford v. Wallace,

258 U.S. 495 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Sw. Airlines Co. v. Saxon,

596 U.S. 450 (2022) . . . 2, 5, 7, 10, 11, 16, 17, 24, 25, 28

Tenney Eng’g, Inc. v. United Elec. Radio &

Mach. Workers of Am., (U.E.) Loc. 437,

207 F.2d 450 (3d Cir. 1953) . . . . . . . . . . . . . . . . . . . . . 14

The Employers’ Liability Cases,

207 U.S. 463 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Am. Bldg. Maint. Indus.,

422 U.S. 271 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Cap. Transit Co.,

325 U.S. 357 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Yellow Cab Co.,

332 US 218 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Vaden v. Discover Bank,

556 U.S. 49 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ix

Cited Authorities

Page

Viking River Cruises, Inc. v. Moriana,

596 U.S. 639 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Virginian Ry.Co. v. System Federation No. 40,

300 U.S. 515 (1937) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Waithaka v. Amazon.com, Inc.,

966 F.3 10 (1st Cir. 2020) . . . . . . . . . . . . . . . . . . . . . 13

Wallace v. Gubhub Holdings, Inc.,

970 F.3d 798 (7th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 13

Walling v. Jacksonville Paper Co.,

317 U.S. 564 (1943) . . . . . . . . . . . . . . . . . . . . . 18, 19, 21

Wright v. Universal Maritime Service Corp.,

525 U.S. 70 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statutes

9 U.S.C. §1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 8

9 U.S.C. §4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

9 U.S.C. §151(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

9 U.S.C. §151(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

9 U.S.C. §151(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

x

Cited Authorities

Page

9 U.S.C. §1301, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

29 U.S.C. §151, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

29 U.S.C. §152(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

29 U.S.C. §152(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

29 U.S.C. §203, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

29 U.S.C. §203(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

29 U.S.C. §206(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

29 U.S.C. §207(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

29 U.S.C. §213(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

45 U.S.C. §51, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

45 U.S.C. §151, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . 3, 23

45 U.S.C. §153(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

45 U.S.C. §181, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . 3, 23

49 U.S.C. §13501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

49 U.S.C. §31502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

xi

Cited Authorities

Page

Esch-Cummins Transportation Act of 1920 . . . . . . . 9, 23

Fair Labor Standards Act (FLSA) . . . . . . . . . . . . . . 17-22

Federal Arbitration Act (FAA) . . . . . . 2, 3, 4, 6-12, 15-17,

20, 22, 23, 28, 29

Federal Employers Liability Act . . . . . . . . . . . . . . . . . . 17

ICC Termination Act of 1995,

Pub. L. No. 104 -88, 109 Stat. 803 . . . . . . . . . . . . . . . 21

Motor Carrier Act of 1935,

Ch. 498, 49 Stat. 543 (MCA) . . . . . . . . . . . . . . . 20-22

National Labor Relations Act (NLRA) . . . . . . . . 3, 25-27

Railway Labor Act (RLA) . . . . . . . . . . . . . . . . . 3, 9, 23-25

Shipping Commissioners Act of 1872 . . . . . . . . . . . . . . . . 9

Rules and Regulations

29 C.F.R. §§776.9-776.11 . . . . . . . . . . . . . . . . . . . . . . . . . 19

29 C.F.R. §782.2(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

29 C.F.R. §782.7(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

xii

Cited Authorities

Page

Other Authorities

78 Cong.Rec. 9888-89 (May 29, 1934) . . . . . . . . . . . . . . 26

I r v i ng Be r n st ei n , Th e Tur b u l e n t Ye a r s

(1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Ella Klahr Bunnell, How the Federal Arbitration

Act’s “Transportation Workers Exemption”

Protects Last-Mile Delivery Drivers, 2024

U.Ill.R.Online 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

John David Dufort, Navigating the Arbitration

Speedway: Gig Economy Drivers Blindly

Swer ve Thro ugh Obsta cles Created by

the Uneven Application of the Federal

Arbitration Act, 69 Vill. L. Rev. 439 (2024) . . . . . . . 13

Matthew W. Finkin, “ Workers’ Contracts”

Under the United States Arbitration Act:

An Essay in Historical Clarification, 17

Berkeley J. Emp. & Lab. L. 282 (1996) . . . . . . . . . . . 8

Gladys Gruenberg, Joyce Najita & Dennis Nolan,

The National Academy of Arbitrators: Fifty

Years in the World of Work (1997) . . . . . . . . . . . . . . . 1

Tamar Meshel, Employment Arbitration:

Recent Developments and Future Prospects,

39 Ohio State J. Dis. Res. 279 (2024) . . . . . . . . . . . . 13

xiii

Cited Authorities

Page

Policy Statement—Motor Carrier Interstate

Transportation—From Out-of-State Through

Wareh o u ses t o Points in Sam e St at e,

8 I.C.C. 470 (1992 WL 122949) . . . . . . . . . . . . . . . 21, 22

The Developing Labor Law: The Board, the

Courts, and the National Labor Relations Act,

Jayme L. Sophir, ed., 2025 (ebook ABA /

Bloomberg Law) . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

The Railway Labor Act, Douglas W. Hall &

Marcus Migliore eds., 2023 (ebook ABA /

Bloomberg Law) . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 25

1

INTEREST AND CONCERN OF AMICUS1

Amicus National Academy of Arbitrators (Academy

or 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

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

associates for parties in the field, 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 been used to resolve disputes over the

statutory rights of employees in the non-union workplace.

Academy members serve parties in both fields. For the

non-union workplace, as in this case, the NAA has been

a leader in developing professional standards and due

process protections. 5

On several occasions, the NA A as amicus has

contributed briefs to the Court in labor-management

arbitration cases as well as disputes regarding the Federal

Arbitration Act (FAA).6 In particular, the Academy has

offered its views in Circuit City, Saxon, and Bissonnette,

three cases in which, as in this proceeding, the coverage

of transportation workers under the residual clause of

Section 1 of the FAA was at issue. As relevant here,

5. See, e.g., https://naarb.org/due-process-protocol/; https://

naarb.org/guidelines-for-standards-of-professional-responsibilityin-mandatory-employment-arbitration/.

6. 9 U.S.C. §1. See, e.g., Bissonnette v. LePage Bakeries

Park St., LLC, 601 U.S. 246 (2024); Viking River Cruises, Inc. v.

Moriana, 596 U.S. 639 (2022); Sw. Airlines Co. v. Saxon, 596 U.S.

450 (2022); Epic Sys. Corp. v. Lewis, 584 U.S. 497 (2018); 14 Penn

Plaza, LLC v. Pyett, 556 U.S. 247 (2009); Major League Baseball

Players Ass’n v. Garvey, 532 U.S. 504 (2001); Circuit City Stores,

Inc. v. Adams, 532 U.S. 105 (2001); Eastern Associated Coal Corp.

v. United Mine Workers, 531 U.S. 57 (2000); Wright v. Universal

Maritime Service Corp., 525 U.S. 70 (1998); AT&T Technologies,

Inc. v. Communications Workers of America, 475 U.S. 643 (1986).

3

NAA members have decades of experience with trucking,

shipping and other transportation disputes in cases

involving private sector employees subject to the National

Labor Relations Act (NLRA)7 and to the Railway Labor

Act (RLA)8 for the heavily unionized railroad and airline

industries. In providing the Academy’s perspective,

amicus emphasizes that the organization supports

arbitration as an institution because it is capable, when

properly structured, of providing workplace justice in

accord with legislative intent, judicial precedent, and

historic practice.

INTRODUCTION AND SUMMARY OF ARGUMENT

Amicus NAA supports Respondent Brock and the

Tenth Circuit’s decision in Brock v. Flowers Foods, Inc.9

The Academy maintains that a straightforward answer to

the question before the Court can be found in its previous

Section 1 decisions. In those cases, the Court applied the

residual clause of 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.”10 In doing so, the Court determined that

transportation workers are excluded from the FAA,

including those who are engaged in commerce without

crossing a state border or who work in a non-transportation

industry.

7. 29 U.S.C. §151, et seq.

8. 45 U.S.C §151, et seq., and §181, et seq.

9. 121 F.4th 753 (10th Cir. 2024).

10. 9 U.S.C. §1.

4

In this proceeding, Petitioner Flowers Foods and

related companies (or, Flowers) urge the Court to

construe the residual clause in Section 1 as applying

only if the worker at issue is personally involved with

a vehicle crossing a border, or by loading or unloading

goods on such vehicles. In Flowers’ brief, it states that

the Section 1 exemption is limited to workers who “move

goods across state lines” or “interact with the vehicles

that do. . . .”11 For Flowers, those who do neither fail to

qualify as transportation workers. Flowers describes

Brock’s work as confined to “moving goods from one local

spot to another,” and argues that “whether the goods

Brock transports were part of an interstate transaction is

irrelevant to the actual work Brock performs.”12 Neither

proposition is accurate. Adding the conditions proposed by

Flowers to the text of Section 1 would disregard decades of

Court decisions recognizing that the channels of interstate

commerce cannot be confined in this way.

If the FAA is revised as Flowers prefers, it would

disrupt administration of the U.S. transportation system

by creating conflicts with existing substantive laws

affecting hundreds of thousands of workers 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 national companies such as Amazon,

Wal-Mart, Target, and others. Brock is such a driver.

11. Petitioners’ Brief at 12.

12. Id. at p. 22.

13. https://www.census.gov/library/stories/2019/06/americakeeps-on-trucking.html.

5

After the Court broke new ground in Circuit City,

perhaps it is not surprising that there are jurisprudential

differences among parties and courts considering Section

1’s residual clause. While Saxon and Bissonnette helped

resolve some of the differences, Flowers’ view of a

“transportation worker” is too limited because it fails

to consider how the work being performed is engaged

with interstate commerce, the question before the Court.

Instead, Flowers distorts the Court’s reasoning in Saxon

and Bissonnette by arguing that the last portion of a

journey made by its bakery products is irrelevant to the

Section 1 inquiry. In reality, the performance of work

cannot be divorced from determining whether the goods

being transported are in interstate commerce; that is, part

of continuing movement through the channels of commerce

by crossing state lines to an ultimate destination. To

separate the movement of goods from this inquiry is

to ignore the words “engaged in foreign or interstate

commerce” in Section 1’s residual clause. These are two

sides of the same coin and must be considered together.

If Flowers’ position is adopted, drivers delivering its

bakery products from a warehouse in the same state in

which its products are made, to a depot or warehouse in

an adjacent state, will be exempt from Section 1. However,

for Flowers, drivers picking up the same product from a

depot or warehouse in the adjacent state for delivery in

that same state will not be exempt. As a result, if Flowers’

“transportation worker” test is approved, drivers in one

state will be exempt, but drivers in the adjacent state

will not be exempt—even though both drivers are doing

precisely the same work of delivering the company’s

product.

6

The happenstance of a state line and the location of a

warehouse should not yield different readings of the FAA

when the work being performed entails the interstate

delivery of a product to its destination. Indeed, Flowers

concedes this factual premise as being essential for its

own business. In a declaration offered by Flowers in the

District Court, it explains how its nationwide “directstore-delivery” (DSD) distribution model relies on drivers

to transport products to the end user.14 For Flowers, the

DSD system is one in which,

. . . orders for its customers are produced by

out-of-state bakeries in response to Brock’s

specific orders. They are then shipped from

the various out-of-state bakeries to Brock’s

warehouse in Colorado for ultimate sale and

delivery of the products to the end customers

for whom he ordered them with the intent that

such products will be delivered to those end

customers. . . .”15

Flowers also operates a data tracking system that

carefully monitors every step of the product to its final

location.16

14. Joint Appendix (Jt. App.) at 92-97.

15. Id. at 95.

16. Id. at 96. Flowers’ DSD distribution model also is

described on the company’s website: https://flowersfoodservice.

com/why-flowers/. Additional insight into the integrated nature

of a driver’s work within Flowers’ nationwide distribution system

can be found in In Re Flowers Foods, Inc. Sec. Litig., 2018 WL

1558558 (M.D. Ga. 2018) at 2-3.

7

To assist the Court, the Academy offers a workable

approach to clarify who is a “transportation worker”

engaged in interstate commerce. This approach draws

upon examples of substantive laws governing the American

workplace that have long covered transportation workers.

Applying this perspective will bring greater consistency

and predictability to the administration of the FAA’s

residual clause, and will limit conflict between the FAA, a

procedural statute, and substantive employment laws that

govern the American workplace. As a result, employers,

workers, courts and arbitrators will benefit. In accord with

Saxon’s command, the Academy’s approach applies both

to identify the “class of workers” in Section 1’s residual

clause as one step in the decision-making process, and also,

as the second step of the process, to use existing sources

of positive law that offer guidance as to when workers are

“engaged in interstate commerce.”

Reference to existing law also provides an important

guardrail for the judiciary. When, as is often the case,

courts must decide who is an exempt transportation

worker under the Court’s Section 1 precedent, there is

a risk of judges becoming de facto personnel officials.

Parties ask courts to review job descriptions, assignment

schedules, freight manifests, location tracking data, and

other transportation evidence, to decide whether workers

are subject to the FAA. Courts utilizing a time-consuming

and hyper-technical method of decision-making can find

themselves straying from the text of the FAA’s Section

1 residual clause. Instead, the Academy offers a realistic

means of clearing up uncertainty when applying that

provision.

8

ARGUMENT

1. As Confirmed by Decisions of This Court, Section 1’s

Residual Clause Exempts Transportation Workers

Engaged In Interstate Commerce.

Section 1 of the FAA states that the statute does not

apply “to contracts of employment of seamen, railroad

employees, or any other class of workers engaged in

foreign or interstate commerce.”17 The plain text of the

residual clause in Section 1 exempts classes of workers

who are engaged in interstate commerce. The statutory

choice of words is meaningful, as demonstrated by the

FAA’s legislative history and the exemption’s context,

which focused on protecting labor interests and existing

means of dispute resolution from arbitration under the

FAA.18

The Court first construed Section 1’s residual clause

in Circuit City. Rather than read the text to cover all

classes of workers, the Court applied the doctrine of

ejusdem generis to conclude that mention of seamen and

railroad employees in Section 1 meant that “any other

class of workers” in the residual clause should only apply

to “transportation workers.”19 A related factor in Circuit

City’s understanding was a distinction between the

narrow scope of the Section 1 exclusion for those “engaged

17. 9 U.S.C. §1.

18. Matthew W. Finkin, “Workers’ Contracts” Under

the United States Arbitration Act: An Essay in Historical

Clarification, 17 Berkeley J. Emp. & Lab. L. 282, 286-288 (1996).

19. Circuit City, supra, 532 U.S. 105, 114-115 (2001).

9

in commerce,” and the broader reach of “affecting

commerce” and “involving commerce” for enforcement

under Section 2 of the FAA. In applying this distinction,

the Court cited antitrust cases which viewed the “engaged

in commerce” language as precluding coverage of local

economic activity within the outer limits of the commerce

power. 20 Another feature of the Court’s reasoning was that

Congress likely crafted the residual clause because “it did

not wish to unsettle established or developing statutory

dispute resolution schemes covering specific workers,” 21

citing in particular the Shipping Commissioners Act of

1872, the Transportation Act of 1920 and the Railway

Labor Act enacted in 1926 and amended in 1936. 22

The Circuit City decision meant that the FAA’s Section

1 exemption did not cover either the retail store employee

in that case or employees generally. By adopting a narrow

reading of the breadth of the residual clause to confine

the exemption to transportation workers, the Court left

Section 1 issues about the content of the exclusion for

subsequent consideration.

Since Circuit City, the Court has ruled on Section 1’s

residual clause in three cases. In 2019, the Court found

that truck drivers deemed to be independent contractors

were excluded from coverage as “workers” even though

20. Id. at 115-117, citing United States v. Am. Bldg. Maint.

Indus., 422 U.S. 271 (1975) (janitorial services for others engaged

in commerce); Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186

(1974) (local asphalt production).

21. Circuit City, supra, 532 U.S. at 120-121.

22. Id. at 121.

10

they were not classified as employees. 23 In Saxon in 2022,

the Court ruled that ramp agent supervisors who load

and unload cargo on planes, but who do not cross state

borders, were excluded from the FAA. 24 In Saxon, the

Court prescribed a two-step analysis to assess the work

performed by the “class of workers” at issue, and whether,

by doing such work, the employees were “engaged in

interstate commerce.” The Court found that the plaintiff,

a baggage handler and supervisor, was exempt based on

her work, “not what Southwest does generally.” 25 For the

Court, the intrastate handling of cargo on planes headed

out of state showed that the workers were “engaged in

interstate commerce,” distinguishing this work from

the business dealings in antitrust cases which the Court

viewed as purely local activity. 26 A key lesson from Saxon

is that it is what workers do that exempts them from FAA

coverage.

Most recently, in Bissonnette in 2024, a case involving

another Flowers subsidiary, the Court confirmed that

the Section 1 exemption is not industry-dependent, but

is tied to what a worker is doing; in that case, delivering

company products to market. 27 Bissonnette adhered to

Saxon’s lesson, reasoning that a transportation industry

test “would often turn on arcane riddles about the nature

23. New Prime Inc. v. Oliveira, 586 U.S. 105 (2019).

24. Saxon, supra, 596 U.S. 450 (2022).

25. Id. at 456.

26. Id. at 462-463.

27. Bissonnette, supra, 601 U.S. at 246.

11

of a company’s services,” rather than on what the workers

actually did. 28

As Saxon and Bissonnette confirm, the FAA’s use

of the term “workers” in the residual clause directs

attention to the performance of work, while the statute’s

use of “engaged . . . emphasizes the actual work that

members of the class, as a whole, typically carry out.” 29

Accordingly, for the Tenth Circuit in this case, the facts

showed that Flowers’ drivers are members of a class of

workers transporting goods in the company’s interstate

distribution channels for deliveries to customer locations.

In contrast, Flowers’ reading of the Section 1

exemption would mean that delivery drivers who transport

goods for companies with broad distribution networks

would not be exempt if, after out-of-state shipments

are sent to an in-state depot or warehouse, they are

delivered by another driver to an ultimate destination.

This cramped interpretation of what interstate commerce

means—deeming the last driver to be irrelevant—is at

odds not only with this Court’s recent decisions, but also

with those of the Court for more than 100 years, before

and after passage of the FAA.

A sampling of several decisions demonstrates a variety

of intrastate transportation activities that the Court has

considered part of interstate commerce. In one, the Court

found invalid a license rule for an in-state shipping agent.30

28. Id. at 254.

29. Saxon, supra, 596 U.S. at 456.

30. Rearick v. Com. of Pennsylvania, 203 U.S. 507 (1906).

12

In another, coal cars were changed within a state for

subsequent interstate shipment. 31 In a third case, multiple

steps in the intrastate movement of cattle to and from

stockyards was interstate commerce.32 The same was true

for railway rates within a state33 and for intrastate train

transfers34 where goods were on a continuous interstate

journey. In a case the Tenth Circuit found instructive for

this dispute, the Court concluded that a special contract

for taxi service for rail passengers between two stations

was interstate commerce, although independent local taxi

service was not. 35

The NAA believes that the principles the Court has

applied in diverse commercial and regulatory settings to

determine when intrastate activity qualifies as interstate

commerce, before and after enactment of the FAA, are

consistent with the Academy’s proposal in this brief;

a proposal that relies on statutory text, history and

precedent under our nation’s employment and labor laws.

2. Lower Court Disputes Over Section 1’s Residual

Clause Reflect Continued Differences About its

Application.

Since Circuit City, lower court variation when

applying the Section 1 exemption is evident as courts have

31. Philadelphia & R.R. Co. v. Hancock, 253 U.S. 284 (1920).

32. Stafford v. Wallace, 258 U.S. 495 (1922).

33. Baltimore & O.S.W.R. Co. v. Settle, 260 U.S. 166 (1922).

34. United States v. Cap. Transit Co., 325 U.S. 357 (1945).

35. United States v. Yellow Cab Co., 332 US 218 (1947), cited

in Brock, supra, 121 F.4th at 765-766.

13

grappled with determining who counts as a transportation

worker. 36 Some decisions have considered the frequency

or amount of time a worker travels across state lines, 37

and others have focused on a worker’s position in a supply

chain, 38 including warehouse or franchise operations. 39

While work that involves local pickups and deliveries far

removed from interstate activity has not been deemed

exempt,40 other decisions have dealt with whether a worker

36. Recent reviews of Section 1 cases include: Ella Klahr

Bunnell, How the Federal Arbitration Act’s “Transportation

Workers Exemption” Protects Last-Mile Delivery Drivers, 2024

U.Ill.R.Online 37; John David Dufort, Navigating the Arbitration

Speedway: Gig Economy Drivers Blindly Swerve Through

Obstacles Created by the Uneven Application of the Federal

Arbitration Act, 69 Vill. L. Rev. 439 (2024); Tamar Meshel,

Employment Arbitration: Recent Developments and Future

Prospects, 39 Ohio State J. Dis. Res. 279 (2024).

37. Compare Singh v. Uber Technologies, Inc., 67 F.4th 550

(3d Cir. 2023); Cunningham v. Lyft, Inc., 17 F.4th 244 (1st Cir.

2021); Capriole v. Uber Techs., Inc., 7 F.4th 854 (9th Cir. 2021) and

Osvatics v. Lyft, Inc., 535 F.Supp.3d 1 (D.D.C. 2021) with Islam

v. Lyft, Inc., 524 F.Supp.3d 338 (S.D.N.Y. 2021).

38. Compare Waithaka v. Amazon.com, Inc., 966 F.3 10 (1st

Cir. 2020); Rittmann v. Amazon.com, Inc., 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).

39. Compare Carmona Mendoza v. Domino’s Pizza, LLC, 73

F.4th 1135 (9th Cir. 2023) and Ortiz v. Randstad Inhouse Services,

95 F.4th 1152 (9th Cir. 2024) with Lopez v. Cintas Corp., 47 F.4th

428 (5th Cir. 2022).

40. Wallace v. Gubhub Holdings, Inc., 970 F.3d 798 (7th Cir.

2020).

14

closely supports interstate transportation functions,41 and

yet others consider if there is a significant difference, for

Section 1, between transporting people and transporting

goods. 42 An emerging issue is whether arrangements

requiring drivers to form corporate entities to deliver

products are “contracts of employment” in interstate

commerce under Section 1.43

Some terms that have been used to describe a

worker’s engagement in interstate commerce, such as

“direct,” “necessary,” “actively engaged,” and “intimately

involved,” among others, have been misapplied to

limit what the residual clause excludes from statutory

coverage.44 As shown by the litigation history for Section

1, these terms, subjective by nature, can confuse rather

than illuminate the assessment of workplace policies and

41. Lopez v. Aircraft Serv. Int’l, Inc., 107 F.4th 1096 (9th

Cir. 2024); Palcko v. Airborne Express, Inc., 372 F.3d 588 (3d Cir.

2004); Perez v. Global Airport Sec. Services, Inc., 253 F.3d 1280

(11th Cir. 2001).

42. Singh v. Uber Techs., Inc., 939 F.3d 210 (3d Cir. 2019).

43. Compare Fli-Lo Falcon, LLC v. Amazon.com, Inc., 97

F.4th 1190 (9th Cir. 2024) with Adler v. Gruma Corp., 135 F.4th

55 (3d Cir. 2025) and Silva v. Schmidt Baking Distribution, LLC,

2025 WL 3703088 (2d Cir. Dec. 22, 2025)

44. The descriptive terms used in the Section 1 decisions

recall the analysis of the residual clause in a collective bargaining

dispute involving a manufacturing company in Tenney Eng’g,

Inc. v. United Elec. Radio & Mach. Workers of Am., (U.E.) Loc.

437, 207 F.2d 450, 452 (3d Cir. 1953)(residual clause applies only

to classes of workers “ . . . engaged directly in commerce, that is,

only those . . . 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”).

15

practice. Flowers’ proposed test is a good example of this

trend with its tunnel vision of what workers do. This is

especially so for a truck driver who is “[i]ndisputably . . .

a transportation worker” under the FAA.45

The Academy urges the Court to clarify the test for

determining when a transportation worker is “engaged

in . . . interstate commerce” and is thus exempt from the

FAA. In doing so, the NAA is not proposing that the

Court “reinvent the wheel.” Rather, the Court can rely

on substantive laws and its own substantial precedent

applying interstate commerce in a variety of contexts,

thereby limiting the prospect of piecemeal litigation

requiring discovery and trials to decide if the exemption

applies, or not.46

3. A Workable Approach is Available Based on

Substantive Employment and Labor Laws.

A workable approach faithful to the text of the FAA

is available to assist with consistent application of the

45. Lenz v. Yellow Transp., 431 F.3d 348, 351 (8th Cir. 2005).

See also Canales v. CK Sales Co., LLC, 67 F.4th 38, 45-46 (1st

Cir. 2023); Int’l Bhd. of Teamsters Loc. Union No. 50 v. Kienstra

Precast, LLC, 702 F.3d 954, 957 (7th Cir. 2012).

46. Fraga v. Premium Retail Services, Inc., supra, 61 F.4th

at 237. Section 4 of the FAA provides for summary disposition or

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.) Discovery findings also may play a role beyond FAA

proceedings, as evident in securities litigation alleging petitioner’s

strategic business decision to treat its drivers as independent

contractors rather than as employees. (See In Re Flowers Foods,

Inc. Sec. Litig., supra, 2018 WL 1558558 at 2 (citing accounting

officer deposition).

16

Court’s Section 1 precedent. To this end, the Academy

urges reliance on employment and labor laws that have

long dealt with the movement of goods and passengers

in interstate commerce, and that have resolved disputes

affecting classes of workers engaged in interstate

commerce. Sharpening the focus to laws with settled

principles governing interstate commerce will preserve

the distinction between substantive legal doctrine and

the FAA, a procedural statute that is not an independent

basis for federal jurisdiction.47 It also reduces the risk of

the FAA becoming a type of super-employment statute

superceding substantive laws in the field.

To apply this perspective, the Academy offers a road

map for Section 1 disputes. Circuit City’s construction of

the residual clause was tied to the breadth of the clause by

limiting its reach to transportation workers, rather than all

workers. Subsequent decisions in New Prime, Saxon and

Bissonnette directed statutory attention to the content of

work. The road map proposed by the Academy builds upon

this approach. As demonstrated by the record in the District

Court, Flowers’ drivers are a key link in the distribution

of products that are ordered for customers from out-ofstate bakeries. The work they did was an extension of, and

indistinguishable from, the work of delivery drivers in the

originating state. For this case, like work should be treated

alike for FAA Section 1 purposes.

With this understanding, a further refinement of the

content of work excluded under Section 1 is appropriate,

one that emphasizes the importance of substantive law

derived from workplace experience. The Court already

47. Vaden v. Discover Bank, 556 U.S. 49, 59 (2009).

17

has begun this project, relying in particular on the Federal

Employers Liability Act,48 an important precedent in

previous Section 1 decisions by the Court.49 The Court can

continue developing this perspective and avoid unsettling

other statutory settings by referring to U.S. employment

and labor laws developed when the FAA was enacted,

or soon after, as Circuit City instructs and as we are

reminded by Bissonnette. 50 Within this framework, the

Academy offers three additional guideposts as examples of

statutes that shed light on the content of “any other class

of workers engaged in foreign or interstate commerce” to

be excluded from the FAA.

A key source to assist in resolving Section 1 disputes

is the Fair Labor Standards Act (FLSA), 51 the statutory

basis for the wage claims in this proceeding based on

drivers being employees, not independent contractors. As

required by the overtime provision of the FLSA, in words

that echo the residual clause in Section 1,

. . . no employer shall employ any of his employees

who in any workweek is engaged in commerce or

in the production of goods for commerce . . . for

a workweek longer than forty hours. . . .52

48. 45 U.S.C. §51, et seq.

49. See, e.g., Circuit City, supra, 532 U.S. at 116, citing The

Employers’ Liability Cases, 207 U.S. 463 (1908) and Second

Employers’ Liability Cases, 223 U.S. 1 (1912); Saxon, supra, 596 U.S.

at 457, citing Baltimore & O. S. W. R. Co. v. Burtch, 263 U.S. 540 (1924).

50. 601 U.S. at 253, citing Circuit City, supra, 532 U.S. at 121.

51. 29 U.S.C. §203, et seq.

52. 29 U.S.C. §207(a)(emphasis added). See also 29 U.S.C.

§206(a) (minimum wage). The FLSA, in 29 U.S.C. §203(b), defines

18

The longstanding FLSA test for determining if the

intrastate segment of a shipment is “engaged in commerce”

was set forth in Walling v. Jacksonville Paper Co.53 At

issue in Jacksonville Paper was the in-state distribution

of paper products from a branch operation after they

were ordered for delivery from an out-of-state location.

The Court held that this intrastate work was covered by

the FLSA, stating:

If there is a practical continuity of movement

from the manufacturers or suppliers without

the state, through respondent’s warehouse

and on to customers whose prior orders or

contracts are being filled, the interstate journey

is not ended by reason of a temporary holding

of the goods at the warehouse. The fact that

respondent may treat the goods as stock in

trade or the circumstance that title to the

goods passes to respondent on the intermediate

delivery does not mean that the interstate

journey ends at the warehouse. 54

Soon after Jacksonville Paper, the Court issued

another important FLSA decision, McLeod v. Threlkeld.55

In that case, the Court declined to extend the FLSA to

“commerce” as: “trade, commerce, transportation, transmission,

or communication among the several States or between any State

and any place outside thereof.”

53. 317 U.S. 564 (1943).

54. Id. at 569 (emphasis added).

55. 319 U.S. 491 (1943).

19

contract workers furnishing meals to maintenance-of-way

railroad employees, concluding that this local work was

unrelated to interstate commerce. Jacksonville Paper

and McLeod represent two points along a continuum

in determining when intrastate work is deemed part of

interstate commerce.

Drawing upon FLSA case law, federal regulations

provide criteria determining when intrastate work is

considered part of interstate commerce. 56 As stated in

29 C.F.R. §776.9,

. . . the courts have made it clear that coverage

of the Act based on engaging in commerce

extends to every employee employed “in the

channels of” such commerce or in activities so

closely related to such commerce, as a practical

matter, that they should be considered a part

of it. 57

Another regulation, 29 C.F.R. §776.10, extends FLSA

coverage to,

[E]mployees whose work is an essential part of

the stream of interstate or foreign commerce, in

whatever type of business they are employed. . . .

This would include, for example, employees of

a warehouse whose activities are connected

56. 29 C.F.R. §§ 776.9-776.11.

57. 29 C.F.R. §776.9, citing, inter alia, Walling v. Jacksonville

Paper Co., supra, 317 U.S. 564.

20

with the receipt or distribution of goods across

State lines. 58

Also demonstrating the relevance of the FLSA to

FAA Section 1 disputes is litigation Flowers has pursued

relying on the Motor Carrier Act (MCA),59 enacted in 1935,

and later reorganized and renumbered.60 As enacted, the

MCA applied to motor carriers “engaged in interstate or

foreign commerce,”61 the same condition required by the

FAA’s residual clause and by the FLSA.

In Ash v. Flowers Foods, Inc.,62 a recent Fifth Circuit

decision concerning the relationship between the MCA

and the FLSA, the court affirmed summary judgment

for Flowers. In that case, Flowers invoked the MCA to

seek an exemption from the overtime mandate under

Section 13(b)(1) of the FLSA.63 In order to claim the MCA

exemption, Flowers made an argument that directly

contradicts its position in this case. It argued that its

drivers were engaged in interstate commerce even though

they picked up and delivered products in only one state.

The Fifth Circuit panel agreed with Flowers and upheld

the District Court decision, finding that Flowers’ in-state

delivery drivers were exempt from overtime under the

58. 29 C.F.R. §776.10, citing A.H. Phillips, Inc. v. Walling,

340 U.S. 490 (1945).

59. Ch. 498, 49 Stat. 543.

60. 49 U.S.C. §§13501, 31502.

61. 49 Stat. 543, §202(b).

62. 2024 WL 1329970 (5th Cir. 2024).

63. 29 U.S.C. §213(b)(1); also see 29 C.F.R. §782.2(a)(2).

21

FLSA. Flowers has advanced the same position in other

FLSA cases.64

The federal regulation that assists in determining

when intrastate activity is part of interstate commerce

under both the MCA and the FLSA adds weight to this

analysis. Statutory coverage for transportation of goods

in interstate commerce is premised on the “practical

continuity of movement . . . from the point of origin to

the point of destination.”65 This standard governs both

statutes, “except in those situations where the Commission

has held or the Secretary of Transportation or the courts

hold otherwise.”66

A Pol ic y St at ement i s sue d by t he S u r fa c e

Transportation Board67 reinforces this approach to the

intrastate movement of goods from warehouses.68 The

Policy Statement provides in relevant part:

64. See, e.g., Aguiluz v. Flowers Foods, Inc., 2024 WL

5251179 (C.D. Ca. 2024); Noll v. Flowers Foods, Inc., 442 F.Supp.3d

345 (D. Me. 2020).

65. 29 C.F.R. §782.7(b)(1), citing, inter alia, Walling v.

Jacksonville Paper Co., supra, 317 U.S. 564.

66. 29 C.F.R. §782.7(b)(1).

67. The Surface Transportation Board was the successor to

the Interstate Commerce Commission. (See I.C.C. Termination

Act of 1995, Pub. L. No. 104–88, 109 Stat. 803; also see 9 U.S.C.

§1301, et seq.)

6 8 . Po li c y St a t e m e n t — Mo t o r C a r r i e r In t e r s t a t e

Transportation—From Out-of-State Through Warehouses to

Points in Same State, 8 I.C.C. 470 (1992 WL 122949).

22

The essential and controlling element in

determining whether the traffic is properly

characterized as interstate is whether the

shipper has a “fixed and persisting” intent

to have the shipment continue in interstate

commerce to its ultimate destination. Where

a distribution center or warehouse serves only

as temporary storage to permit orderly and

convenient transfer of goods in the course

of what the shipper intends to be continuous

movement to a destination, the continuity of

the movement is not broken at the warehouse.69

Viewed together, the federal regulation and the Policy

Statement define when drivers for the intrastate portion of

delivery work are engaged in interstate commerce. Since

the FAA shares the same statutory premise of engagement

in interstate commerce that is present for the FLSA and

the MCA, the jurisprudence, interpretive regulations and

policy statements applicable to the FLSA and MCA are

relevant to interpreting the text of the FAA. Within that

context, it is telling that the evidence Flowers submitted

to the District Court in this case describing what its

drivers do when ordering and delivering products parallels

the description of interstate commerce in the federal

regulations and Policy Statement discussed above.70

A second area of substantive law to assist in

determining the content of the Section 1 exclusion is

69. Policy Statement, supra, 8 I.C.C. 470.

70. Jt. App. at 94-96.

23

the Railway Labor Act,71 one of the statutes shaping

the majority’s reading of the FAA in Circuit City. The

RLA specifically applies to those employees working

for railroads and air carriers. Notably, the RLA’s

jurisdictional test is nearly identical to the text of the FAA

in extending coverage to workers “engaged in interstate

or foreign commerce.” 72 The relevance of the RLA to

Section 1 disputes is amplified because the RLA reflects

a broad understanding of the content of transportation,

which includes many workers who are not obviously on

trains or planes, or loading them.73

71. 45 U.S.C. §151 et seq.

72. Section 181 states that air carriers and their employees

are “engaged in interstate or foreign commerce,” text which

parallels the FAA exemption. (45 U.S.C. §181.) And who are those

employees? Section 181 states they are, “every air pilot or other

person who performs any work as an employee or subordinate

official of such carrier.” (Id.) Similarly, for railroad workers,

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.)

73. The breadth of the RLA’s application to workers tracks

the Esch-Cummins Transportation Act of 1920, also 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.)

The RLA in 45 U.S.C. §153(h) covers personnel working for

railroads. After amendment of the RLA in 1936, the statute also

covers those working for air carriers, as detailed by the treatise,

The Railway Labor Act, § 4.II.E.2, Douglas W. Hall & Marcus

Migliore eds., 2023 (ebook ABA/Bloomberg Law).

24

Although the Court in Saxon rejected a blanket

airline industry exclusion under Section 1, the decision

did not preclude reliance on the RLA’s statutory

framework to assist in deciding if a worker is exempt.74

Justice Thomas, writing for the Court, reasoned that the

distinction between “seamen” and “railroad employees”

in Section 1 weighed against an industry-based test,

“[r]egardless of whether ‘railroad employees’ include all

rail-transportation workers.” 75 For the NAA, the RLA

remains an important source of congressional direction in

identifying transportation workers engaged in interstate

commerce. Under the RLA, the statute has covered

workers who may never cross state lines but who are

nonetheless “engaged in interstate commerce” if they are

integral parts of the interstate transportation of people

or goods.

For example, in Virginian Ry.Co. v. System Federation

No. 40,76 the Court held that the work activities of “back

shop” employees who repaired train cars and locomotives

at a railroad’s facility in West Virginia, “have such a

relation to the other confessedly interstate activities of

the petitioner that they are regarded as part of them,”

and therefore within the RLA’s jurisdiction.77 By focusing

solely on Brock’s intrastate work, Flowers disregards

whether this work is, “as a practical matter, part of

74. Saxon, supra, 596 U.S. at 460-461.

75. Id.

76. 300 U.S. 515 (1937).

77. Id., 300 U.S. at 554-556.

25

the interstate transportation of goods.” 78 The RLA’s

jurisdiction extends to work that does not cross state

borders.79 RLA coverage of intrastate work also may

extend to third party contractors servicing aircraft and

railroads, although this depends on the nature and scope

of work performed, and the degree of employer control. 80

A third relevant source for a Section 1 road map

is precedent under the NLRA. The NLRA states that

“affecting commerce,” “ . . . means in commerce, or

burdening or obstructing commerce or the free flow of

commerce, or having led or tending to lead to a labor

dispute burdening or obstructing commerce or the free

flow of commerce.” 81 Although Circuit City rejected

the argument that Section 1’s residual clause should be

construed to encompass the full extent of the commerce

power, Justice Kennedy, writing for the majority, gave

equivalent weight to the terms “in commerce” and

“engaged in commerce”:

The Court’s reluctance to accept contentions

that Congress used the words “in commerce”

or “engaged in commerce” to regulate to the

full extent of its commerce power rests on

78. Saxon, supra, 596 U.S. at 457.

79. See The Railway Labor Act, supra, §§ 3.I.A.2.B (rail

functions), 3.I.B.2.b (air functions).

80. See, e.g., Delpro Co. v. Broth. Ry. Carmen of U.S. &

Canada, AFL-CIO, 676 F.2d 960 (3d Cir. 1982); Dist. 6 Int’l Union

of Indus. v. National Mediation Board of U.S., 139 F.Supp.2d 557

(S.D.N.Y. 2001).

81. 29 U.S.C. §152(7) (emphasis added).

26

sound foundation, as it affords objective and

consistent significance to the meaning of the

words Congress uses when it defines the reach

of a statute. 82

Recognizing the relevance of the NLRA to the

issue in this case is consistent with the way in which

labor strife in transportation was a significant factor

for passage of the NLRA. The NLRA was enacted in a

period of widespread labor unrest in 1934 and 1935. At

the time, strikes involving truck drivers in Minneapolis

and dockworkers in San Francisco increased concerns

over industrial peace and spurred statutory means of

resolving labor disputes. 83 As one example of the impact

of these actions, 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 passage of the new labor legislation. 84

From the earliest days of the statute, bakery drivers

were among the many transportation workers covered

by the law. 85 Indeed, the National Labor Relations

82. Circuit City, supra, 532 U.S. at 117. Under the NLRA,

the term “commerce” means, “ trade, traff ic, commerce,

transportation, or communication among the several States . . . or

between points in the same State but through any other State or

any Territory or the District of Columbia or any foreign country.”

(29 U.S.C. §152(6).)

83. Irving Bernstein, The Turbulent Years, at 217-351 (1969).

84. 78 Cong.Rec. 9888-89 (May 29, 1934).

85. See, e.g., Bakery & Pastry Drivers & Helpers Loc. 802

of Int’l Bhd. of Teamsters v. Wohl, 315 U.S. 769 (1942); Nat’l Lab.

Rels. Bd. v. Cont’l Baking Co., 221 F.2d 427 (8th Cir. 1955). This

27

Board (NLRB) determined that route drivers for the

company in Bissonnette, a Flowers subsidiary, would be

an appropriate unit for union representation. 86 In other

cases, the NLRB has affirmed jurisdictional findings that

Flowers is “in commerce” under the statute in finding that

it committed unfair labor practices affecting bargaining

units of production and maintenance employees. 87

Transportation workers covered by the NLRA

are not parsed into discrete occupational categories to

determine if they are covered by the statute. Instead,

the NLRA’s jurisdictional reach is limited by statutory

definitions for “employee,” “employer,” and “supervisor,”88

and by the business volume thresholds established by the

NLRB. 89 Relevant here, workers providing interstate

transportation services for passengers or goods, or

essential links in such services, are subject to the NLRA,

application of the NLRA is consistent with the seminal decision of

N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). In that

case, the Court applied the NLRA to a steel company that, with

its subsidiaries, employed thousands of workers in a “completely

integrated enterprise” with its own transportation facilities in

several states and Canada. (Id. at 26-27.)

86. See LePage Bakeries, NLRB Case No. 1-RC-21501 (2002);

LePage Bakeries, NLRB Case No. 1-RC-21877 (2005).

87. See, e.g., Flowers Baking Co., Inc., 240 NLRB 870 (1979);

Flowers Baking Co., 169 NLRB 738 (1968); Flowers Baking Co.,

161 NLRB 1429 (1966).

88. 9 U.S.C. § 151(2), (3), (11).

89. The Developing Labor Law: The Board, the Courts, and

the National Labor Relations Act, Ch. 27.II.A, Jayme L. Sophir,

ed., 2025 (ebook ABA/Bloomberg Law),

28

except that coverage is limited to businesses exceeding

$50,000 in gross annual volume.90

The examples offered by the Academy are not the

only potential sources for analyzing the content of the

Section 1 transportation worker exclusion. Guidance

also may be drawn from statutes addressing workplace

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 interstate commerce in a variety

of workplace settings. This well-established detail offers

a solid foundation to determine the content of the Section

1 exemption, without turning the FAA into 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, or not, under Section 1’s

residual clause.

CONCLUSION

Circuit City delineated the breadth of Section 1’s

residual clause by excluding transportation workers,

and not all workers. New Prime, Saxon and Bissonnette

assisted in determining the content of Section 1’s exclusion

by placing the focus on actual work performed and on

engagement in commerce. Flowers seeks a significant

limitation on the application of Section 1’s residual

clause by proposing to redefine “interstate” in the text

of the statute. However, as Judge Learned Hand wisely

90. Id., §27.IV.B.

29

wrote, the Court should not “make a fortress out of the

dictionary.” 91

In the aftermath of the Court’s Section 1 decisions,

lower courts and litigants have attempted to refine

the content of the exclusion. The Academy proposes

that a workable approach for Section 1 disputes can be

found in already-existing substantive laws that apply to

transportation workers engaged in interstate commerce.

If the Academy’s perspective is adopted, courts and

parties will have substantive law and practice to guide

decision-making, and they will be spared the seemingly

never-ending task of construing the content of work

covered by the residual clause. They also will be spared

potential conflicts that can arise between the procedural

reach of the FAA and well-developed 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

91. Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945), aff’d,

326 U.S. 404 (1945). As expressed by Judge Hand,

[O]f course it is true that the words used, even in

their literal sense, are the primary, and ordinarily

the most reliable, source of interpreting the meaning

of any writing: be it a statute, a contract, or anything

else. But it is one of the surest indexes of a mature

and developed jurisprudence not to make a fortress

out of the dictionary; but to remember that statutes

always have some purpose or object to accomplish,

whose sympathetic and imaginative discovery is the

surest guide to their meaning.

30

text.” 92 As in New Prime, the Court should refrain from

exercising its authority to “pave over bumpy statutory

texts in the name of more expeditiously advancing a policy

goal.” 93

Respectfully submitted,

Lise Gelernter

Arbitrator/Visiting Scholar

University of Buffalo

School of Law

5500 North Bailey Avenue,

Box 589

Amherst, NY 14226

Joshua M. Javits

Arbitrator & Mediator

President, National Academy

of A rbitrators

700 New Hampshire Avenue, NW,

Suite 416

Washington, DC 20037

Barry Winograd

Counsel of Record

Arbitrator & Mediator

875-A Island Drive,

No. 144

Alameda, CA 94502

(510) 393-7283

winmedarb@aol.com

Dated: January 22, 2026

92. New Prime, supra, 586 U.S. at 120.

93. Id.