Justices debate arbitration exemption for transportation workers
ARGUMENT ANALYSIS
on Feb 20, 2024
at 8:44 pm
The justices heard argument in Bissonnette v. LePage Bakeries Park St., LLC on Tuesday. (Tori Madden)
As I explain in my preview, the question in Bissonnette v. LePage Bakeries Park St. is whether the workers here – truck drivers for the company that makes Wonder Bread – count as transportation workers exempt from the Federal Arbitration Act. The key language protects employees, by excluding from the FAA’s arbitration requirement, all “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” At bottom, the justices have to decide whether the key fact is the employer’s industry – they can’t be transportation workers if they work in the food industry – or the employee’s job activity – they must be transportation workers if they drive trucks for a living.
The dominant voice at Tuesday’s oral argument was Justice Brett Kavanaugh’s, and he was strongly predisposed to favor the employers. For him, the history and design of the statute strongly suggest a focus on whether workers are, or are not, working in the transportation industry. Early in the argument he raised the historical point that “as of 1925, Congress didn’t want anyone to be outside of arbitration. They wanted Section 2 for most workers and then not for seamen and railroad employees because there was a separate arbitration regime. Why, when we look at the common legal context that connects those terms, isn’t that the correct way to look at it?”
Pointing to a 1936 extension for “the airline industry,” in which “those employees are funneled into the same kind of arbitration – the railway arbitration regime,” Kavanaugh regarded the statute as directed at the industry in which the workers are employed. Thus, he explained: “As a class, the seamen are the people who do the work of the shipping industry. As a class, railroad employees are people who do the work of the railroad industry.”
Kavanaugh also made it clear that he thought that a ruling for the employees – protecting them from mandatory arbitration – would be a major shift. “I think the number of workers who are going to be exempt and the number of companies who are going to have to deal with this is massive if you lose,” he told Traci Lovitt, the company’s attorney, offering her a chance to “spell that out” for him.
Several of the justices seemed much less sure of the result. And at least Justice Ketanji Brown Jackson seemed to lean the other way. “I think the line is drawn between transportation workers and other workers,” she said, “You can have transportation workers in a different kind of industry. … [W]e’ve said that the enumeration goes to transportation worker. Seamen, railroad workers.”
Much of the relatively brief argument seemed to bog down on the specific details of particular workers and statutes, many of which seemed to undercut Kavanaugh’s grand vision of workers in transportation industries, covered by their specific arbitration regimes (like the Railway Labor Act), with all workers outside those regimes covered by the FAA. Jackson, for example, challenged Lovitt about “cases from the 1920s in which you didn’t have to be in the transportation industry in order to be counted as a seaman.”
Moments later, Justice Amy Coney Barrett asked quite a similar question, about a federal statute that according to Jennifer Bennett (representing the workers) was read to “encompass seamen who were outside of the shipping industry.” She closed pointedly: “If I agree with her about that, do you lose?”
The argument suggests a lot of dissatisfaction with the reasoning of the court of appeals, which does not seem to have plumbed the depths of the relevant materials. It is hard to say, though, whether Kavanaugh will be able to muster a majority for his overarching framework for applying the statute. Perhaps we will find out before June!
