Bissonnette v. LePage Bakeries Park St., LLC ( 2023 )

20-1681
Bissonnette v. LePage Bakeries Park St., LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 15th day of February, two thousand twenty-three.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
STEVEN J. MENASHI,
EUNICE C. LEE,
BETH ROBINSON,
MYRNA PÉREZ,
ALISON J. NATHAN,
SARAH A. L. MERRIAM,
Circuit Judges.
_____________________________________
NEAL BISSONNETTE, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED, AND TYLER
WOJNAROWSKI, INDIVIDUALLY AND
ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Plaintiffs-Appellants,
v. 20-1681
1
LEPAGE BAKERIES PARK ST., LLC, C.K.
SALES CO., LLC, AND FLOWERS FOODS,
INC.,
Defendants-Appellees.
_____________________________________
For Plaintiffs-Appellants: Harold L. Lichten, (Matthew Thomson,
Zachary L. Rubin, on the brief) Lichten &
Liss-Riordan, P.C., Boston, MA.
For Defendants-Appellees: Traci L. Lovitt (Matthew W. Lampe,
Amanda K. Rice, on the brief), Jones Day,
New York, NY & Detroit, MI, and Margaret
Santen Hanrahan, Ogletree Deakins Nash
Smoak & Stewart, P.C., Charlotte, NC, on
the brief.
Following disposition of this appeal on May 5, 2022, Plaintiffs-Appellants
filed a petition for rehearing en banc. The opinion was amended September 26,
2022, and a judge on the panel thereafter requested a poll on whether to rehear the
case en banc. A poll having been conducted and there being no majority favoring
en banc review, the petition for rehearing en banc is hereby DENIED.
Alison J. Nathan, Circuit Judge, joined by Beth Robinson and Myrna Pérez,
Circuit Judges, dissents by opinion in the denial of rehearing en banc.
Dennis Jacobs, Circuit Judge, filed a statement with respect to the denial of
rehearing en banc.
Rosemary S. Pooler, Circuit Judge, filed a statement with respect to the denial
of rehearing en banc.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
2
ALISON J. NATHAN, Circuit Judge, joined by BETH ROBINSON and MYRNA PÉREZ,
Circuit Judges, dissenting from the order denying rehearing en banc:
In this Circuit, rehearing en banc is quite rare. And for good reason.
Rehearing cases only in exceptional circumstances promotes virtues such as
judicial economy and collegiality and accords with our Circuit’s longstanding
tradition “of general deference to panel adjudication—a deference which holds
whether or not the judges of the Court agree with the panel’s disposition of the
matter before it.” New York v. Dep't of Just., 964 F.3d 150, 166 (2d Cir. 2020)
(Katzmann, C.J., dissenting from denial of rehearing en banc). Even so, one
circumstance in which this rare step is warranted is when an intervening decision
of the Supreme Court directly conflicts with circuit precedent.
The Supreme Court’s decision in Southwest Airlines Co. v. Saxon, 142 S. Ct.
1783 (2022), decided after the panel issued its original decision in this case, is just
such an intervening decision. Both Saxon and this case involve statutory
interpretation of Section 1 of the Federal Arbitration Act (FAA). The FAA broadly
requires courts to enforce arbitration agreements in any “contract evidencing a
transaction involving commerce.” 9 U.S.C. § 2. Section 1 exempts from the Act’s
coverage “contracts of employment of seamen, railroad employees, [and] any
other class of workers engaged in foreign or interstate commerce.” Id. § 1. Prior
to Saxon, our Court interpreted this exemption as limited to “workers involved in
the transportation industries.” Adams v. Suozzi, 433 F.3d 220, 226 n.5 (2d Cir. 2005)
(citation omitted); see also Md. Cas. Co. v. Realty Advisory Bd. on Lab. Rels., 107 F.3d
979, 982 (2d Cir. 1997); Erving v. Va. Squires Basketball Club, 468 F.2d 1064, 1069 (2d
Cir. 1972). The original majority opinion in this case applied this circuit precedent
without the benefit of the Supreme Court’s decision in Saxon and concluded that
the exemption did not apply to Appellants, truck drivers transporting baked
goods. The majority so held because the Appellants are employed by a bakery
conglomerate, which the court determined is not an employer in the transportation
industry. Accordingly, the original opinion concluded that the Plaintiff truck
drivers would have to pursue their claims for unpaid wages through arbitration,
rather than in court. Bissonnette v. LePage Bakeries Park St., LLC, 33 F.4th 650, 657
(2d Cir.), amended and superseded on reh’g, 49 F.4th 655 (2d Cir. 2022). Judge Pooler’s
original dissent argued that this was error from the get-go. See Bissonnette, 33 F.4th
at 662–68. Agree or disagree, prior to Saxon, the original majority opinion’s
conclusion constituted an available application of then-controlling Second Circuit
precedent.
2
But then the Supreme Court handed down Saxon. This intervening decision
expressly rejects the notion embedded in our circuit precedent that the industry in
which an employer operates, rather than the work that the employee does,
determines whether the employee belongs to a “class of workers engaged in
foreign or interstate commerce.” Saxon, a ramp supervisor at Southwest Airlines
whose work regularly required her to load and unload cargo from planes, brought
claims against Southwest under the Fair Labor Standards Act. Saxon, 142 S. Ct. at
1787. Southwest contended that Saxon’s claims had to be arbitrated because the
Section 1 exemption applied only to workers who physically move goods across
state or international boundaries. In contrast, Saxon argued that the exemption
covers all workers who carry out the customary work of airlines. Id. at 1790–91.
The Supreme Court, rejecting both interpretations, concluded that Saxon fit within
the exemption because “Saxon is . . . a member of a ‘class of workers’ based on
what she does at Southwest, not what Southwest does generally.” Id. at 1788 (emphasis
added). Because what Saxon does is load cargo on and off airplanes, the Supreme
Court held that she could litigate, rather than arbitrate, her claims. Id. at 1793.
In reaching this conclusion, Justice Thomas, writing for a unanimous Court,
focused on the text of Section 1 exempting “seamen, railroad employees, [and] any
3
other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1.
He reasoned that “[b]ecause ‘seamen’ includes only those who work on board a
vessel, they constitute a subset of workers engaged in the maritime shipping
industry,” not the entire industry. Id. at 1791. The carveout, therefore, does not
“identify[] transportation workers on an industrywide basis.” Id. Based on the
text of the statute, the Court further provided a simple and straightforward test to
determine who is exempted. The Court held that “any class of workers directly
involved in transporting goods across state or international borders falls within
§ 1’s exemption.” Id. at 1789.
Unsurprisingly, the panel in this case agreed to panel rehearing in light of
Saxon. But after considering the Supreme Court’s opinion, the panel majority
issued an amended opinion that continues to do the opposite of what Saxon’s
reasoning and holding require. The amended majority opinion does not consider
the work performed by Appellants—driving trucks and delivering goods—in
determining whether they are transportation workers. Rather, the amended
opinion concludes that “the distinctions drawn in Saxon do not come into play”
because they apply only when an employer operates in a transportation industry,
and the employer in this case is a bakery rather than something like an airline or a
4
trucking company. Bissonnette, 49 F.4th at 661–62. Thus, the amended majority
opinion continues to identify transportation workers on an industrywide basis and
expressly holds: “[T]he plaintiffs are not ‘transportation workers,’ even though
they drive trucks, because they are in the bakery industry, not a transportation
industry.” Id. at 657.
The amended majority opinion attempts to reconcile this move with Saxon
by ignoring Justice Thomas’s textual reasoning and supplanting the Supreme
Court’s clear interpretive directives with its own atextual test. Saxon explained
that the FAA’s use of the words “workers” and “engaged,” rather than
“employees” or “servants,” emphasizes “the performance of work” and “the actual
work that the members of the class, as a whole, typically carry out.” Saxon, 142 S.
Ct. at 1788 (emphasis in original). Paying no heed to this analysis, the amended
opinion instead requires workers to establish eligibility for the Section 1 exemption
based on both the work they perform and the work their employer does on an
industry-wide basis. See Bissonnette, 49 F.4th at 661.
The amended opinion’s primary justification for establishing this
multilayered framework, aside from fidelity to past Second Circuit precedent, is
that the examples of “‘seamen’ and ‘railroad employees’ . . . . are telling because
5
they locate the ‘transportation worker’ in the context of a transportation industry.”
Id. at 660. In so reasoning, the majority sticks with what the Supreme Court
expressly termed a “flawed premise[:] that ‘seamen’ and ‘railroad employees’ are
both industrywide categories.” Saxon, 142 S. Ct. at 1791. Whereas Justice Thomas
rejected this premise because the term “seamen” does not encompass the entire
shipping industry, the amended opinion presumes that all “seamen” work for
transportation companies. But just as truck drivers sometimes work for bakery
conglomerates, seamen might work for companies in a non-transportation
industry that operate their own ships, say, fisheries, large retailers, or oil
companies. It is impossible to reconcile the amended opinion’s analysis with the
Supreme Court’s contrary conclusion that “the two terms [seamen and railroad
employees] cannot share a ‘common attribute’ of identifying transportation
workers on an industrywide basis.” Id.
Ultimately, in order to rationalize the imposition of an additional test
contrary to Saxon’s holding, the amended majority opinion falls back on the FAA’s
pro-arbitration statutory purpose and the purported need for further limits on
Section 1’s scope. See Bissonnette, 49 F.4th at 660–61; see also Statement of Judge
Jacobs at 5 (“The problem is the frustration of the congressional preference for
6
arbitration by expanding the exemption beyond its purpose and any definable
limits . . . .”). But Saxon rejected this argument too. Southwest similarly argued
that “the FAA’s ‘proarbitration purposes’ . . . counsel[] in favor of an interpretation
that errs on the side of fewer § 1 exemptions,” but Justice Thomas responded, “we
are not ‘free to pave over bumpy statutory texts in the name of more expeditiously
advancing a policy goal’ . . . and we have no warrant to elevate vague invocations
of statutory purpose over the words Congress chose.” Saxon, 142 S. Ct. at 1792–93
(quoting New Prime Inc. v. Oliveira, 139 S. Ct. 532, 543 (2019)). Nor do we need to.
Saxon provides a “workable principle,” Statement of Judge Jacobs at 4, in its
statutory holding that “any class of workers directly involved in transporting
goods across state or international borders falls within § 1’s exemption,” Saxon at
1789.
In sum, maintaining the “transportation industry” requirement is, as Saxon
demonstrates and holds, unsupported by the text of the FAA. Saxon tells us that
in interpreting the Section 1 exemption, we must attend to the nature of a worker’s
duties, not the industry of their employer. Our prior precedent and the amended
opinion do not so attend. Because the amended majority opinion is in direct
7
conflict with the textual reasoning and holding of the Supreme Court’s intervening
decision in Saxon, I respectfully dissent from the denial of rehearing en banc.
8
DENNIS JACOBS, Circuit Judge, Statement of Views in Support of the Denial of
Rehearing in Banc1:
The issue is whether the plaintiffs, purveyors of baked goods in
Connecticut, are “transportation workers” who, under an exception to the
Federal Arbitration Act (FAA), cannot be compelled by contract to arbitrate.
9 U.S.C. § 1; Cir. City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001). As the
Supreme Court has explained, not everyone working in a transportation industry
is a transportation worker: back-office staff and lawyers come to mind. Sw.
Airlines Co. v. Saxon, 142 S. Ct. 1783, 1788 (2022). At the same time, every
appellate opinion that grants exemption to a transportation worker under
Section 1 of the FAA decides or presumes the prior question of whether that
person works in a transportation industry.2 So much for a circuit split.
1 As a senior judge, I have no vote on whether to rehear a case in banc. As
a member of the panel that decided the case that is the subject of the in banc
order, however, I am privileged to respond to an opinion dissenting from the
denial of rehearing.
2 See, e.g., Waithaka v. Amazon.com, Inc., 966 F.3d 10, 23 (1st Cir. 2020),
cert. denied 141 S. Ct. 2794 (2021) (“We simply point out, as is evident here, that
the nature of the business for which the workers perform their activities is
important in determining whether the contracts of a class of workers are covered
by Section 1.”); Rittmann v. Amazon.com, Inc., 971 F.3d 904, 907 (9th Cir. 2020),
cert. denied 141 S. Ct. 1374 (2021) (“Plaintiffs . . . contracted with Amazon
Logistics, Inc. to provide delivery services for . . . . Amazon’s app-based delivery
1
The plaintiffs in Bissonnette buy baked goods from a company that makes
a score of buns, rolls, and snack cakes, as well as Wonder Bread. Bissonnette v.
LePage Bakeries Park St., LLC, 49 F.4th 655, 658 (2d Cir. 2022). They purchase
local distribution rights, solicit business from shops and supermarkets within
their territory, sell the goods to the stores they sign up, arrange the fresh goods
on the shelves, and carry away the rest. Id. They earn the difference between the
prices at which they buy and sell the baked goods. Id. To do this, they drive a
truck. If they could be deemed transportation workers simply by eliding the
foundational question of whether they work in a transportation industry, so
program, Amazon Flex . . . .”); Palcko v. Airborne Express, Inc., 372 F.3d 588, 590
(3d Cir. 2004) (“[Defendant] is a package transportation and delivery company
. . . .”); Harden v. Roadway Package Sys., Inc., 249 F.3d 1137, 1139 (9th Cir. 2001)
(plaintiff engaged to “provid[e] a small package information, transportation and
delivery service throughout the United States”); see also, e.g., Hill v. Rent-A-
Center, Inc., 398 F.3d 1286, 1290 (11th Cir. 2005) (“Because [plaintiff] was not
within a class of workers within the transportation industry, his employment
contract is not exempted from the FAA’s mandatory arbitration provisions.”);
Lenz v. Yellow Transp., Inc., 431 F.3d 348, 349 (8th Cir. 2005) (“[Plaintiff] works
in the transportation industry . . . . A . . . difficult question arises when an
employee, like [plaintiff], works for a transportation company but is not a truck
driver or transporter of goods.”); but see Carmona v. Domino’s Pizza, LLC, 21
F.4th 627, 629–30 (9th Cir. 2021), vacated 143 S. Ct. 361 (2022) (concluding that
truck drivers for Domino’s Pizza were transportation workers).
2
could the undertaker who drives a hearse, the milkman in the morning, the chef
in a food truck, and the person who delivers a pepperoni with extra cheese.
The Supreme Court in Saxon concluded that a person who works as a
ramp supervisor for Southwest Airlines--supervising workers who “physically
load and unload baggage, airmail, and freight,” and pitching in herself--qualifies
as a “transportation worker.” Saxon, 142 S. Ct. at 1787. The self-evident premise
of Saxon was that an airline is a transportation industry. Id. (“Southwest
Airlines moves a lot of cargo.”). The Court rejected the plaintiff’s industrywide
approach because it would have made all workers in a transportation industry
into transportation workers. Id. at 1791 (“We . . . reject Saxon’s argument that § 1
exempts virtually all employees of major transportation providers.”). This
makes sense: “those who design Southwest’s website” are not transportation
workers, nor are “those who run the Southwest credit-card points program.” Id.
at 1790–91. Under Saxon, we look at “the actual work that members of the class,
as a whole, typically carry out” to determine who within a transportation industry
qualifies as a transportation worker. Id. at 1788. But the Court in Saxon had no
cause to consider the status of workers who transport goods in an industry that
is not a transportation industry.
3
To be exempt from contractually compelled arbitration, a worker must be
one who works in a transportation industry. We know this because (i) the
statute exempts “contracts of employment of seamen, railroad employees, or any
other class of workers engaged in foreign or interstate commerce,” 9 U.S.C. § 1(emphasis added), and because (ii) the Supreme Court tells us the statute is
“controlled and defined by reference to the enumerated categories of workers
which are recited,” Cir. City, 532 U.S. at 115 (emphasis added). The prime error
that has been rejected in this in banc poll is to skip the question of whether the
plaintiffs work in a transportation industry, and to consider only whether they
move things about.
The statute creates an exemption for those who work moving goods and
passengers in one of the mighty engines of interstate and international transport,
not for everyone who works on wheels. As this Court’s opinion frames the
resulting principle: an “individual works in a transportation industry if the
industry in which the individual works pegs its charges chiefly to the movement
of goods or passengers, and the industry’s predominant source of commercial
revenue is generated by that movement.” Bissonnette, 49 F.4th at 661–62. If my
friends have some other workable principle for deciding the question, I have not
4
seen it. Their way leads to non-exclusive lists of factors, tests, and elements,
enumerated--but not limited--to encompass all possibly relevant circumstances,
then choreographed into steps and skewered into prongs, reviewed for clear
error to the extent found as facts but weighed de novo, and afforded due
deference as to this but not that. And all of that would be overlaid by disputes
over whether the transportation is foreign or interstate commerce.3 The
consequence is that many such motions to compel arbitration would grow into
sizable litigations and close-fought appeals.
The resulting problem is not overwork for the courts; we turn the lights on
to decide questions. The problem is the frustration of the congressional
preference for arbitration by expanding the exemption beyond its purpose and
any definable limits, and requiring that motions to compel arbitration run a
3 The plaintiffs work only in Connecticut. Bissonnette, 49 F.4th at 657. The
dissent posits that they are nevertheless “engaged in foreign or interstate
commerce” because “[t]he loaves of Wonder Bread they transport are delivered
to the defendant’s warehouse from commercial bakeries outside Connecticut.”
Id. at 669 (Pooler, J., dissenting). I agree that, under Saxon, the employer’s
entanglement with interstate commerce affects whether the worker falls under
Section 1. 142 S. Ct. at 1789. But surely what matters is the interstate character of
the employer’s industry, not the interstate character of the Wonder Bread.
5
gauntlet of expensive and uncertain litigation. My friends dissent without
advancing a useful alternative to the Court’s opinion.
Unfortunately, Section 1 will often generate puzzles, anomalies, and close
cases. But this case is not one of them. Reader, pass by.
6
POOLER, Circuit Judge, Statement in Opposition to the Denial of Rehearing En
Banc 1
The Court today decides not to convene en banc to review Bissonnette v.
LePage Bakeries Park St., LLC, 49 F.4th 655 (2d Cir. 2022), a decision that directly
contravenes the Supreme Court’s recent opinion in Southwest Airlines Co. v.
Saxon, 142 S. Ct. 1783 (2022). The panel refused to amend the majority opinion
accordingly following Saxon and instead fashioned its own definition of
transportation workers under the Federal Arbitration Act (“FAA”) out of whole
cloth without any reference to the FAA’s text, a dictionary, the business world,
or—for that matter—any case law. The Court’s decision puts this Circuit’s
precedent regrettably out of step with both the Supreme Court and decisions
from sister Circuits.
The named plaintiffs, Neal Bissonnette and Tyler Wojnarowski, are
commercial truck drivers who represent a putative class of plaintiffs who
distribute baked goods in Connecticut for Flowers Foods, Inc. and two of its
1As a senior judge, I cannot vote on whether to rehear a case en banc, Fed. R.
App. P. 35(a), and thus cannot dissent. As a member of the original panel that
decided the case that is the subject of the en banc order, however, I may file a
statement of views in the circumstances here, where an active judge has filed an
opinion respecting that order.
1
subsidiaries, LePage Bakeries Park St., LLC and C.K. Sales Co. (collectively,
“Defendants”). To work for Defendants, each putative class member was
required to form a corporate entity that then entered into a “Distribution
Agreement” with C.K. Sales, entitling the corporation to certain distribution
rights in exchange for monetary consideration. Each Distribution Agreement
contains a mandatory and binding arbitration provision. The Distribution
Agreements require plaintiffs to work at least forty hours per week, driving
vehicles to stores within a territory designated by Defendants, delivering
Defendants’ baked goods, and arranging the products on the shelves according
to Defendants’ standards. Plaintiffs must comply with Defendants’ policies and
procedures, including the time, place, and manner of pick-ups and deliveries.
Plaintiffs must return to the warehouse each day after completing their deliveries
to upload data to Defendants’ system. Plaintiffs are responsible for obtaining and
insuring their own delivery vehicles.
Plaintiffs filed suit seeking certification as a Fair Labor Standards Act
(“FLSA”) collective action and a Federal Rule of Civil Procedure 23 class action;
damages for unpaid wage and other losses; restitution of payments made by
plaintiffs to purchase their routes; statutory penalties and liquidated damages
2
under Connecticut law and the FLSA; and an injunction ordering Defendants to
reclassify plaintiffs as employees. However, the appeal did not directly deal with
the substance of the complaint’s allegations.
There were two principal issues on appeal. First, whether the FAA
governed the parties’ arbitration provision in the Distribution Agreement or
whether plaintiffs fall within the FAA’s Section 1 exemption for “seamen,
railroad employees, [and] any other class of workers engaged in foreign or
interstate commerce,” 9 U.S.C. § 1 – in other words, “transportation workers,”
Cir. City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001). Second, whether, if the
FAA did not govern the arbitration provision, Connecticut law nevertheless
compelled arbitration. Because the majority held that the truck driver-plaintiffs
were not transportation workers and thus the arbitration provision applied, the
majority did not reach the second issue regarding Connecticut law.
When the panel first considered this case prior to the Supreme Court
issuing Saxon, I thought the answer certain – that truck drivers are transportation
workers. See Bissonnette v. LePage Bakeries Park St., LLC, 33 F.4th 650, 662 (2d Cir.
2022) (Pooler, J., dissenting). Among the district courts, “one area of clear
common ground” regarding the exemption to the FAA has been that truck
3
drivers qualify. Kowalewski v. Samandarov, 590 F. Supp. 2d 477, 482-83 (S.D.N.Y.
2008) (Sullivan, J.). Other circuits agree. See Lenz v. Yellow Transp., Inc., 431 F.3d
348, 351 (8th Cir. 2005) (“Indisputably, if [the employee] were a truck driver, he
would be considered a transportation worker under § 1 of the FAA.”); Palcko v.
Airborne Express, Inc., 372 F.3d 588, 593-94 (3d Cir. 2004) (presuming that truck
drivers fall within the residual clause of Section 1 of the FAA); Harden v. Roadway
Package Sys., Inc., 249 F.3d 1137, 1140 (9th Cir. 2001) (concluding that a “delivery
driver” was a transportation worker).
But the majority inexplicably concluded that because plaintiffs deliver
baked goods, they “are in the bakery industry, not a transportation industry.” See
Bissonnette, 49 F.4th at 657. But see Int’l Bhd. of Teamsters Loc. Union No. 50 v.
Kienstra Precast, LLC, 702 F.3d 954, 957 (7th Cir. 2012) (“[A] trucker is a
transportation worker regardless of whether he transports his employer’s goods
or the goods of a third party . . . .”).
A month after Bissonnette issued, the Supreme Court resolved a circuit split
when it handed down Saxon. In deciding whether an employee is a
“transportation worker” under 9 U.S.C. § 1, Saxon holds that a person is “a
member of a ‘class of workers’ based on what she does” for her employer, “not
4
what [the employer] does generally.” 142 S. Ct. at 1788. When given the
opportunity to revise its opinion to conform with Saxon’s clear holding, the
majority elected not to. The revised decision clings to the fallacy that plaintiffs
are not transportation workers, despite acknowledging they “spend appreciable
parts of their working days moving goods from place to place by truck.”
Bissonnette, 49 F.4th at 661.
Bissonnette cannot be reconciled with Saxon’s clear direction. In reaching
the result that it did, the majority ignored Saxon’s instruction to analyze “the
actual work that the members of the class . . . carry out.” 142 S. Ct. at 1788.
I. Plaintiffs are “transportation workers” under the FAA.
FAA Section 1 sets out an exemption for employment contracts of
“seamen, railroad employees, [and] any other class of workers engaged in
foreign or interstate commerce,” 9 U.S.C. § 1, of which the Supreme Court has
stated that the residual clause refers to “transportation workers,” Cir. City Stores,
Inc., 532 U.S. at 119. Because neither the FAA nor the Supreme Court provides us
with a definition for “transportation workers,” the majority looks to the
examples given, focusing on the context of the transportation industry. See
Bissonnette, 49 F.4th at 660. The majority then creates its own definition of
5
“transportation worker” completely untethered to the FAA’s statutory text and
states that “an individual works in a transportation industry if the industry in
which the individual works pegs its charges chiefly to the movement of goods or
passengers, and the industry’s predominant source of commercial revenue is
generated by that movement.” Id. at 661.
Compare that with the approach taken in Saxon. There, the Supreme Court
held that a ramp supervisor for Southwest Airlines belonged to a class of
transportation workers engaged in foreign or interstate commerce and thus
exempt from the FAA. Saxon, 142 S. Ct. at 1787, 1793. In reaching its conclusion,
the Court first sought to “defin[e] the relevant ‘class of workers’ to which Saxon
belong[ed].” Id. at 1788-89. The Court reasoned that “[t]he word ‘workers’ directs
the interpreter’s attention to ‘the performance of work’” and “the word ‘engaged’
. . . similarly emphasizes the actual work that the members of the class, as a
whole, typically carry out.” Id. at 1788. Accordingly, Saxon was “a member of a
‘class of workers’ based on what she does at Southwest, not what Southwest does
generally.” Id. (emphasis added). Second, the Court determined that this class of
workers was “engaged in foreign or interstate commerce” because “any class of
6
workers directly involved in transporting goods across state or international
borders falls within § 1’s exemption.” Id. at 1789.
Applying Saxon’s two-step framework, first, plaintiffs here plainly belong
to a class of workers who, in the majority’s words, “spend appreciable parts of
their working days moving goods from place to place by truck.” Bissonnette, 49
F.4th at 661. But the majority finds that because plaintiffs’ commerce is in
“breads, buns, rolls, and snack cakes,” and the movement of such commerce is
“at most a component of [the] price,” that plaintiffs are bakery workers. Id. at
662. The majority entirely disregards that plaintiffs’ work principally consists of
driving Department of Transportation-registered commercial trucks delivering
Defendant’s products.
The majority declined to engage in Saxon’s two-step analysis. Having
concluded that plaintiffs are bakery workers, it did “not consider whether this
case could be decided on the ground that the interstate element of the exclusion
is not satisfied,” admitting that it is not a “simple” inquiry. See id. at 662 n.5.
Though plaintiffs do not cross state lines, even the district court acknowledged
that Defendants’ products are manufactured out of state and are delivered to
warehouses in-state, and as such, plaintiffs meet the threshold of being “engaged
7
in . . . interstate commerce.” Bissonette v. Lepage Bakeries Park St., LLC, 460 F. Supp.
3d 191, 198 (D. Conn. 2020). Saxon also never crossed state lines, but rather
“load[ed] cargo on a plane bound for interstate transit.” Saxon, 142 S. Ct. at 1790.
The Supreme Court held that sufficed, as “airplane cargo loaders plainly do
perform ‘activities within the flow of interstate commerce’ when they handle
goods traveling in interstate . . . commerce.” Id. at 1792. Prior to Saxon, other
circuits reached the same result – the First and Ninth Circuits, for instance, held
that so-called “last-mile delivery workers” for Amazon are transportation
workers “[b]y virtue of their work transporting goods or people ‘within the flow
of interstate commerce,’” despite never personally crossing state lines. Waithaka
v. Amazon.com, Inc., 966 F.3d 10, 26 (1st Cir. 2020); Rittmann v. Amazon.com, Inc.,
971 F.3d 904, 916-19 (9th Cir. 2020) (finding that local delivery drivers who
contracted with Amazon to provide delivery services are transportation workers
engaged in interstate commerce and thus exempt from FAA § 1).
Because the core of plaintiffs’ work entails transporting goods through
interstate commerce, I concluded that plaintiffs are “transportation workers”
exempt from the FAA. Bissonnette, 49 F.4th at 674 (Pooler, J., dissenting).
8
II. The Majority ignores and sidesteps Saxon’s holding.
The rationale of the majority opinion cannot be squared with Saxon. As the
Supreme Court observed, the word “workers” in the FAA directs the
interpretation to “the performance of work.” Saxon, 142 S. Ct. at 1788. Despite
this direction, the majority concludes that plaintiffs “are in the bakery industry,
not a transportation industry,” Bissonnette, 49 F.4th at 657, because “the stores
and restaurants are not buying the movement of the baked goods, so long as they
arrive,” id. at 661. Plaintiffs are truck drivers, not bakers, and yet the majority
cannot look past the fact that their employer is a bakery, despite the actual work
plaintiffs do for the bakery. By focusing on the nature of Defendants’ business,
and not on the nature of plaintiffs’ work, the majority takes an industrywide
approach—an approach explicitly rejected by Saxon.
The majority attempts to sidestep Saxon by reasoning that its work-focused
distinction does not come into play. Our Circuit, the majority claims, recognized
that “only a worker in a transportation industry can be classified as a
transportation worker” in Erving v. Virginia Squires Basketball Club, 468 F.2d 1064(2d Cir. 1972) and Maryland Casualty Co. v. Realty Advisory Board on Labor
Relations, 107 F.3d 979 (2d Cir. 1997). Bissonnette, 49 F.4th at 661. Notably, both
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the cases relied on by the majority predate the Supreme Court’s decision in
Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), in which the Court held that
Section 1 of the FAA “exempts . . . only contracts of employment of
transportation workers,” id. at 119. Moreover, neither of those two cases involved
workers whose occupations required the movement of goods or passengers. See
Erving, 468 F.2d at 1066, 1069 (noting that Erving, a professional basketball
player, was not in the transportation industry); Md. Cas.Co.,107 F.3d at 980-82(concluding that commercial cleaners were not in the transportation industry).
The majority claims that because Saxon worked for an airline, the Supreme Court
did not need to elaborate that only those employed by transportation industry
employers can be held as transportation workers. See Bissonnette, 49 F.4th at 661.
That is not what Saxon says. Indeed, the majority’s interpretation is far
more cramped than what Saxon sets out. The majority ignored Saxon’s emphasis
on Southwest Airlines’ “predominant source of commercial revenue,” id., in
determining whether Saxon was a transportation worker, instead focusing on
“what [Saxon] does at Southwest, not what Southwest does generally,” Saxon,
142 S. Ct. at 1788. Saxon affirmed the Seventh Circuit’s decision recognizing that
“a transportation worker need not work for a transportation company.” Saxon v.
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Sw. Airlines Co., 993 F.3d 492, 497 (7th Cir. 2021), aff’d, Saxon, 142 S. Ct. 1783.
Other courts hold the same. See Waithaka, 966 F.3d at 23 (“[A] class of workers
[need not] be employed by an interstate transportation business [n]or a business
of a certain geographic scope to fall within the Section 1 exemption.”); Canales v.
Lepage Bakeries Park St. LLC, 596 F. Supp. 3d 261, 270 (D. Mass. 2022) (rejecting the
argument that “an employer [must] be a transportation company for § 1 to
apply” in case against the same defendants as here). These decisions align with
the FAA’s text, which asks whether an individual belongs to a class of workers
“engaged in foreign or interstate commerce.” 9 U.S.C. § 1. The text does not ask
for whom the worker undertakes their transportation work.
Those who operate commercial trucks to deliver products, as plaintiffs do,
are paradigmatically “engaged in foreign or interstate commerce.” See 9 U.S.C.
§ 1. If Bissonnette remains the law of this Circuit, it does so by departing from the
FAA’s text, the Supreme Court’s clear instructions, and decades of caselaw
nationwide. I urge plaintiffs to seek certiorari, as now, only the Supreme Court
can correct the majority’s mistakes.
For these reasons, I respectfully submit this statement to accompany the
denial of rehearing en banc.
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