May 3, 2024 • 15 mins
On April 12, 2024, the Supreme Court issued its ruling in Bissonnette v. LePage Bakeries Park St., LLC. At issue was whether a transportation worker need not work in the transportation industry to be exempt from coverage under Section 1 of the Federal Arbitration Act.
Join us to hear Professor Samuel Estreicher break down the decision and discuss its potential ramifications.
Featuring:
Prof. Samuel Estreicher, Dwight D. Opperman Professor of Law and Director, Center for Labor, New York University School of Law
Join us to hear Professor Samuel Estreicher break down the decision and discuss its potential ramifications.
Featuring:
Prof. Samuel Estreicher, Dwight D. Opperman Professor of Law and Director, Center for Labor, New York University School of Law
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:02):
Welcome to sco Discast, a projectof the Federalist Society for Law and Public
Policy Studies. Our contributors joined usfrom around the country to bring you expert
commentary on US Supreme Court cases asthey are argued and the decisions are issued.
The Federalist Society takes no position onparticular legal or public policy issues.
All expressions are those of the speaker. Hello, and welcome to scot Discast.
(00:29):
I'm your host, Kyle hammernis Onbehalf of the Faculty division of the
Federalist Society. We are here todayto discuss Bisonette versus Lapage Bakeries Park Street,
LLC, in which the Supreme Courtissued a nine zero decision on April
twelfth, twenty twenty four. Itis my honor to introduce our guests today,
(00:49):
Professor Samuel Striker. Professor Striker isthe Dwight d. Opperman Professor of
Law and the director of the Centerof Labor at New York University of Law.
And with that, I'd like toturn things over to our guest to
discuss the overview of the case andthe Court's decision. Hi, thank you,
Kyle. I had written an amicusbrief in this case is called Biscinet
(01:12):
versus the Page Bakery workers. Thecase has to do with an exception to
the Federal Arbitration Act, which wasa nineteen twenty statute. Federal statue that
requires that all arbitration agreements are enforceablehas written in a very important law in
advancing employment arbitration and other arbitration ofother kinds of disputes as well. Many
(01:38):
states have similar statutes this. Thefederal statue has an exception in it for
I'll just reach you the language contractsof employment of cmen, railroad employees,
or any other class of workers engagedin foreign or interstate commerce. So the
question in Bisonette was the plaintiffs inthis case were drivers for the Page bakeres.
(02:06):
The Page Bakery is one of thebiggest baked goods manufacturers and deliveries in
the country, and these folks drovethose trucks bringing the baked goods to particular
retail outlets in Connecticut. They alsohad some quasi salesman functions. This is
something very common in the baked goodsarea, where the deliver also has to
(02:30):
sort of make sure that the productis properly displayed, that it's displayed at
a level where the customer sees itand also introduces a new product sales.
This is very common. I knowthis from my experience representing Free Dela,
(02:51):
in which they do the same thing. So the question was whether these workers
are covered by the exception. They'reobviously engaged in transportation tasks. It's not
clear. It's not clear that amajority of their tasks. We'll talk about
that in a moment, but theassumption is for purposes of the decision,
which by the way, was ninezero, which is not that which is
(03:13):
not that common in the Supreme Court. But it was a nine zero decision
for the drivers, for the driversagainst the page of bakeries. The question
is is this an industry based exceptionor is it just individual workers. It
was an industry based exception, thenwe'd like to know what industry these drivers
(03:35):
were working in. And it wouldseem it seemed to me anyway writing the
Ambi his grief, that they wereengaged in a retail bakery business or a
wholesale bakery business, but they werenot engaged in a transportation industry. They
were doing incidental tasks. They wereimportant tasks, but tasks for the bakery,
but they themselves were not in atransportation industry. And our argument in
(04:01):
our brief was that Congress actually meanta kind of industry based exception because they
were trying to exempt from the FederalArbitration Act workers and industries that were already
regulated by the federal government and hadalready provided for dispute resolution mechanism. So
(04:21):
that was the basic theory of ouramethust brief that if you look at the
language, but you look at itin the light of the purpose. The
purpose was to exempt industries that werealready regulated by Congress, that had already
provided for dispute resolution machinery, whichmight conflict with the basic model of the
court based Federal Arbitration Act. Thatwas our theory. We thought there was
(04:46):
some support for it. We knewthere was some support for it in Circuit
City, which is the case Iwas also involved in. And so that
was the theory of the amicist brief. The Supreme Court nine to zero basically
rely in part relying on a textualanalysis in which they say that the focus
of the exemption that I've read toyou is a worker based exemption. I'm
(05:10):
not sure the textual analysis goes quiteas far as the court says, because
it says contracts of employment have seenin railroad employees, any other class workers
engaged in foreigner interstate commerce. AndI thought Euston generous the examples. We
control the residual glass, but that'snot what the court holds. The court
(05:31):
holes and so they're basing it ona so called textual analysis. But it's
not clear that the text really carriesthe court as far as its thought.
But they're also basing it on adecision previously decided by the Supreme Court which
involved ramp agents for Southwest Airlines Airlines. This case is called Saxon Saxo n
(05:56):
versus Southwest Airlines, and the questionin that case was whether or not the
ramp agents were engaged in a transportationindustry. The Supreme Court rejected the argument
of Southwest Airlines that it was anindustry based analysis. In other words,
that we couldn't say that everyone thatworks with Southwest Airlines is a transportation worker.
(06:19):
We have to get the actual tasksof the particular worker. So and
Saxon had language that the focus ison what the worker does, not on
what the employer does. That wasthe language, and arguably that language was
fairly broad and could have been narrowto decide the case. But that's the
(06:39):
language, and it was also aunanimous decision. The Chief Judge did not
participate for other reasons. It waseight zero. So you have an eight
zero decision of the Supreme Court thathas language that says it's an industry based
It's not an industry based exemption.It is a worker based exemption. So
(07:00):
what the Supreme Court did, goingback to bisin f versus Lapage bakeries nine
zero, relying in part on atextual analysis and in part on the language
that was used in Saxon, whichI think was broader than necessary to decide
the case inex and any of them. That's where we are. The Court
(07:21):
said that there were certain open questionsthat it was not decided, so I'll
read them to you. One questionwas whether these people were transportation workers.
Well, they were transportation workers ina sense most of their task. We'd
have to do it. We'd haveto do a time at time analysis of
(07:46):
their time. And maybe this istruly an open question, looking at whether
or not the majority of their timewas spent in these various sales functions,
sales promotion functions, or was amajority of their time spent in transportation and
that would be something on Reman.The court repeated language from Saxon that the
(08:07):
workers have to be actively engaged ininterstate commerce. They have to have a
direct and necessary role in interstate commerce. I don't like to make short term
predictions, but I'm not sure thisis going to be much of an avenue
for the page, but I'm surethey got to try to pursue it.
(08:28):
Another question is really interesting is theyleft open whether these workers were engaged in
foreigner interstate sorry, whether these driverswere engaged in foreigner in state commerce because
they delivered only in Connecticut. Thisis really interesting because I think some members
of the court would like to goback to a narrower version of the commerce
(08:48):
boss in Article one, Section eight, and there are other cases that have
been filed with the Sambrinko raising thesame issue. I happen to be a
Natists. I know that I'm ona fedsock program, but I'm a nationalist
and I wrote an enormous paper inhigh school on Frankfurt and the commerce clause.
(09:09):
So I'd hate to see us goingback to a view of the commerce
closure said, until it gets intointerstate commerce, it's not within the power
of Congress to regulate. These peoplemay have sold only in Connecticut, but
their ingredients, I'm sure came fromother places in the country, so that
(09:30):
needs to be examined as well.So those are two open questions. Let
me offer you a third one thatis not mentioned by the Supreme Court.
Many states and some localities have similarstatutes to the Federal Arbitration Statute, in
which they say that you know thesecontracts are enforceable as written. Well,
(09:52):
there'll be different language, but thebasic idea is that arbitration agreements are enforceable
because the old common law. Theold common law was that arbitration agreements were
not enforceable until they were reduced toan award, that you can sort of
opt out of arbitration at any pointuntil they were reduced to an award,
and the Federal Arbitration Act was intendedto override that common law. The position
(10:16):
as worth these state laws. Sothe question is, could could a bakery
like the page say, well,maybe not enforceable under the Federal Arbitration actors
they fall within his transportation worker exception. But maybe they're enforceable under a state
law. Now we'd have to lookat the text of the state law,
and a state law could not infact override federal statutory provision. So to
(10:43):
the extent the page wants the benefitof an implicit jury trial waiver whenever you
have arbitration, that may not applyif you're only relying on the state statue.
This is an opening question, bythe way, an open question.
I'm just pointing out it's a thirdopen question. Uh, that will have
(11:07):
to be dissolved down the road.Anything else I can give you, Sarah,
Yeah, so I think you know, could you go a little bit
more, maybe explain a little bitmore how the the court came to a
So basically, the exception is thatthis is a worker who has some functions
(11:30):
in an industry or has some functionsthat in another industry are covered right by
this federal statue. Am I gettingthere? None? Zip is that it's
an industry based except sorry, it'sa worker based exception. It looks so
could you could you explain the differencein how you would read an industry based
(11:54):
exception versus a worker based exception.Now, after this this case, I
don't think it's going to work underthe Federal Arbitration Act. So the question
is, is Congress and passing onthe statute very unlikely. The plane off
bar and their friends and allies andCongress hate arbitration even though it's good for
most workers. That's been my view, because they get a hearing. So
(12:16):
I don't think we're going to seenew legislation for quite some time. So
that's why I brought up the twoopen questions of the court mentioned. Yeah,
the application of state and local law, Okay, possible some states would
take an industry based view of theirstatues. It's their statutes. We're talking
(12:37):
about the state statutes, state laws. So that's a possibility. And the
other possibilities that these folks, eventhough they were involved in transportation desks,
they spent them, you know,the predominant part of their time in the
sales function. You know, basedon my experience many many years ago,
I'd say thirty years ago, asFreedo lay, I don't think it's likely.
(13:00):
I think it's likely most of theirtime has spent delivering goods. But
that's a factual question has to beresolved. The other question I mentioned to
you is really interesting are they engagedinterstate commerce when they sell all in Connecticut?
So that is something I'm sure LapageBakery is going to focus on.
I say that other station is doingthis as well, and maybe we could
(13:22):
have a Scotis interview on that.There's a recent decision striking down the Corporate
Transparency Act in part. This isan act that requires everyone that is planning
in corporation to file information with theUnited States government. And one of the
arguments is that when you have starteda corporation but you haven't done anything yet,
(13:46):
you're not an interstate commerce. Sothat's an important case CTA, the
Corporate Transparency Act, which I adviseyou to have a Scotis interview on.
And the best person there would bemy good friend Thomas Lee from Fordham University,
because he argued this he won ina district court. Let me assure
(14:09):
you this is on appeal and there'sgoing to be a lot of contention around
it because it's the same issue Ijust highlighted for you. Is it within
the power of Congress under the InterstateCommerce claws to regulate activities before they actually
enter into the stream of interstate Nicethank you for listening to this episode of
(14:30):
SCO Discast. Scot Discust is aproject of the Federalist Society, a not
for profit educational organization of conservative andlibertarian law students, law professors, and
lawyers, founded upon the principles thatthe state exists to preserve freedom, that
the separation of governmental power is essentialto our constitution, and that it is
emphatically the province and duty of thejudiciary to say what the law is,
(14:54):
not what it should be. Don'tforget to subscribe to our podcast series,
including SCO Discasts and Practice Group Podcaston iTunes or Google Play. For an
archive of past podcasts, as wellas audio and video of past Federalist Society
events, please visit our website atfedsock dot org slash multimedia. That's f
E d s OC dot org slashmultimedia. This has been a FEDSOC audio production.
Welcome to sco Discast, a projectof the Federalist Society for Law and Public
Policy Studies. Our contributors joined usfrom around the country to bring you expert
commentary on US Supreme Court cases asthey are argued and the decisions are issued.
The Federalist Society takes no position onparticular legal or public policy issues.
All expressions are those of the speaker. Hello, and welcome to scot Discast.
(00:29):
I'm your host, Kyle hammernis Onbehalf of the Faculty division of the
Federalist Society. We are here todayto discuss Bisonette versus Lapage Bakeries Park Street,
LLC, in which the Supreme Courtissued a nine zero decision on April
twelfth, twenty twenty four. Itis my honor to introduce our guests today,
(00:49):
Professor Samuel Striker. Professor Striker isthe Dwight d. Opperman Professor of
Law and the director of the Centerof Labor at New York University of Law.
And with that, I'd like toturn things over to our guest to
discuss the overview of the case andthe Court's decision. Hi, thank you,
Kyle. I had written an amicusbrief in this case is called Biscinet
(01:12):
versus the Page Bakery workers. Thecase has to do with an exception to
the Federal Arbitration Act, which wasa nineteen twenty statute. Federal statue that
requires that all arbitration agreements are enforceablehas written in a very important law in
advancing employment arbitration and other arbitration ofother kinds of disputes as well. Many
(01:38):
states have similar statutes this. Thefederal statue has an exception in it for
I'll just reach you the language contractsof employment of cmen, railroad employees,
or any other class of workers engagedin foreign or interstate commerce. So the
question in Bisonette was the plaintiffs inthis case were drivers for the Page bakeres.
(02:06):
The Page Bakery is one of thebiggest baked goods manufacturers and deliveries in
the country, and these folks drovethose trucks bringing the baked goods to particular
retail outlets in Connecticut. They alsohad some quasi salesman functions. This is
something very common in the baked goodsarea, where the deliver also has to
(02:30):
sort of make sure that the productis properly displayed, that it's displayed at
a level where the customer sees itand also introduces a new product sales.
This is very common. I knowthis from my experience representing Free Dela,
(02:51):
in which they do the same thing. So the question was whether these workers
are covered by the exception. They'reobviously engaged in transportation tasks. It's not
clear. It's not clear that amajority of their tasks. We'll talk about
that in a moment, but theassumption is for purposes of the decision,
which by the way, was ninezero, which is not that which is
(03:13):
not that common in the Supreme Court. But it was a nine zero decision
for the drivers, for the driversagainst the page of bakeries. The question
is is this an industry based exceptionor is it just individual workers. It
was an industry based exception, thenwe'd like to know what industry these drivers
(03:35):
were working in. And it wouldseem it seemed to me anyway writing the
Ambi his grief, that they wereengaged in a retail bakery business or a
wholesale bakery business, but they werenot engaged in a transportation industry. They
were doing incidental tasks. They wereimportant tasks, but tasks for the bakery,
but they themselves were not in atransportation industry. And our argument in
(04:01):
our brief was that Congress actually meanta kind of industry based exception because they
were trying to exempt from the FederalArbitration Act workers and industries that were already
regulated by the federal government and hadalready provided for dispute resolution mechanism. So
(04:21):
that was the basic theory of ouramethust brief that if you look at the
language, but you look at itin the light of the purpose. The
purpose was to exempt industries that werealready regulated by Congress, that had already
provided for dispute resolution machinery, whichmight conflict with the basic model of the
court based Federal Arbitration Act. Thatwas our theory. We thought there was
(04:46):
some support for it. We knewthere was some support for it in Circuit
City, which is the case Iwas also involved in. And so that
was the theory of the amicist brief. The Supreme Court nine to zero basically
rely in part relying on a textualanalysis in which they say that the focus
of the exemption that I've read toyou is a worker based exemption. I'm
(05:10):
not sure the textual analysis goes quiteas far as the court says, because
it says contracts of employment have seenin railroad employees, any other class workers
engaged in foreigner interstate commerce. AndI thought Euston generous the examples. We
control the residual glass, but that'snot what the court holds. The court
(05:31):
holes and so they're basing it ona so called textual analysis. But it's
not clear that the text really carriesthe court as far as its thought.
But they're also basing it on adecision previously decided by the Supreme Court which
involved ramp agents for Southwest Airlines Airlines. This case is called Saxon Saxo n
(05:56):
versus Southwest Airlines, and the questionin that case was whether or not the
ramp agents were engaged in a transportationindustry. The Supreme Court rejected the argument
of Southwest Airlines that it was anindustry based analysis. In other words,
that we couldn't say that everyone thatworks with Southwest Airlines is a transportation worker.
(06:19):
We have to get the actual tasksof the particular worker. So and
Saxon had language that the focus ison what the worker does, not on
what the employer does. That wasthe language, and arguably that language was
fairly broad and could have been narrowto decide the case. But that's the
(06:39):
language, and it was also aunanimous decision. The Chief Judge did not
participate for other reasons. It waseight zero. So you have an eight
zero decision of the Supreme Court thathas language that says it's an industry based
It's not an industry based exemption.It is a worker based exemption. So
(07:00):
what the Supreme Court did, goingback to bisin f versus Lapage bakeries nine
zero, relying in part on atextual analysis and in part on the language
that was used in Saxon, whichI think was broader than necessary to decide
the case inex and any of them. That's where we are. The Court
(07:21):
said that there were certain open questionsthat it was not decided, so I'll
read them to you. One questionwas whether these people were transportation workers.
Well, they were transportation workers ina sense most of their task. We'd
have to do it. We'd haveto do a time at time analysis of
(07:46):
their time. And maybe this istruly an open question, looking at whether
or not the majority of their timewas spent in these various sales functions,
sales promotion functions, or was amajority of their time spent in transportation and
that would be something on Reman.The court repeated language from Saxon that the
(08:07):
workers have to be actively engaged ininterstate commerce. They have to have a
direct and necessary role in interstate commerce. I don't like to make short term
predictions, but I'm not sure thisis going to be much of an avenue
for the page, but I'm surethey got to try to pursue it.
(08:28):
Another question is really interesting is theyleft open whether these workers were engaged in
foreigner interstate sorry, whether these driverswere engaged in foreigner in state commerce because
they delivered only in Connecticut. Thisis really interesting because I think some members
of the court would like to goback to a narrower version of the commerce
(08:48):
boss in Article one, Section eight, and there are other cases that have
been filed with the Sambrinko raising thesame issue. I happen to be a
Natists. I know that I'm ona fedsock program, but I'm a nationalist
and I wrote an enormous paper inhigh school on Frankfurt and the commerce clause.
(09:09):
So I'd hate to see us goingback to a view of the commerce
closure said, until it gets intointerstate commerce, it's not within the power
of Congress to regulate. These peoplemay have sold only in Connecticut, but
their ingredients, I'm sure came fromother places in the country, so that
(09:30):
needs to be examined as well.So those are two open questions. Let
me offer you a third one thatis not mentioned by the Supreme Court.
Many states and some localities have similarstatutes to the Federal Arbitration Statute, in
which they say that you know thesecontracts are enforceable as written. Well,
(09:52):
there'll be different language, but thebasic idea is that arbitration agreements are enforceable
because the old common law. Theold common law was that arbitration agreements were
not enforceable until they were reduced toan award, that you can sort of
opt out of arbitration at any pointuntil they were reduced to an award,
and the Federal Arbitration Act was intendedto override that common law. The position
(10:16):
as worth these state laws. Sothe question is, could could a bakery
like the page say, well,maybe not enforceable under the Federal Arbitration actors
they fall within his transportation worker exception. But maybe they're enforceable under a state
law. Now we'd have to lookat the text of the state law,
and a state law could not infact override federal statutory provision. So to
(10:43):
the extent the page wants the benefitof an implicit jury trial waiver whenever you
have arbitration, that may not applyif you're only relying on the state statue.
This is an opening question, bythe way, an open question.
I'm just pointing out it's a thirdopen question. Uh, that will have
(11:07):
to be dissolved down the road.Anything else I can give you, Sarah,
Yeah, so I think you know, could you go a little bit
more, maybe explain a little bitmore how the the court came to a
So basically, the exception is thatthis is a worker who has some functions
(11:30):
in an industry or has some functionsthat in another industry are covered right by
this federal statue. Am I gettingthere? None? Zip is that it's
an industry based except sorry, it'sa worker based exception. It looks so
could you could you explain the differencein how you would read an industry based
(11:54):
exception versus a worker based exception.Now, after this this case, I
don't think it's going to work underthe Federal Arbitration Act. So the question
is, is Congress and passing onthe statute very unlikely. The plane off
bar and their friends and allies andCongress hate arbitration even though it's good for
most workers. That's been my view, because they get a hearing. So
(12:16):
I don't think we're going to seenew legislation for quite some time. So
that's why I brought up the twoopen questions of the court mentioned. Yeah,
the application of state and local law, Okay, possible some states would
take an industry based view of theirstatues. It's their statutes. We're talking
(12:37):
about the state statutes, state laws. So that's a possibility. And the
other possibilities that these folks, eventhough they were involved in transportation desks,
they spent them, you know,the predominant part of their time in the
sales function. You know, basedon my experience many many years ago,
I'd say thirty years ago, asFreedo lay, I don't think it's likely.
(13:00):
I think it's likely most of theirtime has spent delivering goods. But
that's a factual question has to beresolved. The other question I mentioned to
you is really interesting are they engagedinterstate commerce when they sell all in Connecticut?
So that is something I'm sure LapageBakery is going to focus on.
I say that other station is doingthis as well, and maybe we could
(13:22):
have a Scotis interview on that.There's a recent decision striking down the Corporate
Transparency Act in part. This isan act that requires everyone that is planning
in corporation to file information with theUnited States government. And one of the
arguments is that when you have starteda corporation but you haven't done anything yet,
(13:46):
you're not an interstate commerce. Sothat's an important case CTA, the
Corporate Transparency Act, which I adviseyou to have a Scotis interview on.
And the best person there would bemy good friend Thomas Lee from Fordham University,
because he argued this he won ina district court. Let me assure
(14:09):
you this is on appeal and there'sgoing to be a lot of contention around
it because it's the same issue Ijust highlighted for you. Is it within
the power of Congress under the InterstateCommerce claws to regulate activities before they actually
enter into the stream of interstate Nicethank you for listening to this episode of
(14:30):
SCO Discast. Scot Discust is aproject of the Federalist Society, a not
for profit educational organization of conservative andlibertarian law students, law professors, and
lawyers, founded upon the principles thatthe state exists to preserve freedom, that
the separation of governmental power is essentialto our constitution, and that it is
emphatically the province and duty of thejudiciary to say what the law is,
(14:54):
not what it should be. Don'tforget to subscribe to our podcast series,
including SCO Discasts and Practice Group Podcaston iTunes or Google Play. For an
archive of past podcasts, as wellas audio and video of past Federalist Society
events, please visit our website atfedsock dot org slash multimedia. That's f
E d s OC dot org slashmultimedia. This has been a FEDSOC audio production.
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