Bissonnette v. LePage Bakeries Park St., LLCBissonnette v. LePage Bakeries Park St., LLC
- Reporters:
- ,
- Before:
- Alison J. Nathan, Beth Robinson, Myrna Pérez, Dennis Jacobs, Rosemary S. Pooler
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
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.”
In reaching this conclusion, Justice Thomas, writing for a unanimous Court, focused on the text of Section 1 exempting “seamen, railroad employees, [and] any
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
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
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
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
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.
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.
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
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
Unfortunately, Section 1 will often generate puzzles, anomalies, and close cases. But this case is not one of them. Reader, pass by.
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
Plaintiffs filed suit seeking certification as a Fair Labor Standards Act (“FLSA“) collective action and a
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,”
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
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
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,”
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
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
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).
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
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. 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.”
Those who operate commercial trucks to deliver products, as plaintiffs do, are paradigmatically “engaged in foreign or interstate commerce.” See
For these reasons, I respectfully submit this statement to accompany the denial of rehearing en banc.