Supreme Court

At the Supreme Court, Will Bad History Lead to More Forced Arbitration?

Andrew Strom

Andrew Strom has been a union lawyer for more than 25 years. He is an Associate General Counsel of Service Employees International Union, Local 32BJ in New York, NY. He is the author of Caught in a Vicious Cycle: A Weak Labor Movement Emboldens the Ruling Class, 16 U.St. Thomas L.J. 19 (2019); Boeing and the NLRB: A Sixty-Four Year-old Time Bomb Explodes, 68 National Lawyers Guild Review 109 (2011); and Rethinking the NLRB’s Approach to Union Recognition Agreements, 15 Berkeley J. Emp. &; Lab. L. 50 (1994), and has written for Dissent and Dollars and Sense. He also taught advanced legal writing at Fordham Law School. He received his J.D. magna cum laude from Harvard Law School. The views he expresses on this blog are his personal views, and should not be attributed to SEIU Local 32BJ.

The Supreme Court recently heard oral argument in Bissonnette v. Le Page Bakeries, a case that asks whether a giant interstate baking company can force the truck drivers who deliver its baked goods to arbitrate any employment-related dispute.  The case turns on the meaning of a provision in the Federal Arbitration Act (FAA) stating that it does not “apply to contracts of employment of seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce.”

This is not the first time the Supreme Court has had a chance to interpret this language.  Back in 2001, in Circuit City v. Adams (a case I’ve written about here), by a 5-4 vote, the Court held that the phrase “any other class of workers engaged in foreign or interstate commerce” only referred to transportation workers.  The Circuit City majority reached that result by refusing to consider legislative history.  Instead, the Court relied on a canon of interpretation known as “ejusdem generis,” Latin for “of the same kind.”  The idea is that if a list is followed by a catch-all term, the catch-all term should be interpreted in light of the listed items.  For example, if a law refers to “cars, trucks, and other vehicles,” a court might hold that the legislature didn’t intend for the law to apply to airplanes.

Justices Stevens and Souter both wrote compelling dissents in Circuit City.  They pointed out that in 1925 when Congress enacted the FAA, it was legislating against the backdrop of Supreme Court decisions holding that Congress’s power to regulate interstate commerce only extended to the movement of goods and not to the places where those goods were produced or sold.  There was no evidence that Congress intended the FAA to apply to any employment contracts.  To the contrary, proponents of the bill described it as a measure relating to “commercial contracts,” and one that would “enable business men to settle their disputes expeditiously and economically.” The Secretary of Commerce explained that the exemption would respond to any “objection … to the inclusion of workers’ contracts.”

As terrible as the Circuit City was, the plaintiffs in Bissonnette have no need to ask the Court to overrule that decision (a hopeless task given the Court’s current composition) because it seems obvious that truck drivers are transportation workers.  The two plaintiffs in this case work for a subsidiary of the multi-billion dollar company Flowers Foods.  They pick-up baked goods at Flowers’ warehouses and deliver them to stores and restaurants.  The Second Circuit Court of Appeals held that the FAA exemption does not apply to all transportation workers, but only to those who work in the “transportation industry.”  In other words, it applies if you work for UPS or FedEx, but not if you work as a truck driver for Flowers or Wal-Mart. 

Because of the Court’s mistake in Circuit City, the parties in Bissonette, and the Court itself, are forced to address the false assumption that Congress deliberately chose to exempt only transportation workers from the FAA’s coverage, and this has led to a series of ridiculous questions and arguments.  For instance, Flowers argued in its brief that Congress chose to exempt “workers critical to commerce and national security.”  At oral argument, Flowers’ lawyer asserted that Congress exempted transportation workers “because only strikes involving the transportation industry brought the country to a halt and caused famines in Chicago.”  First of all, it’s not clear why exempting workers from the FAA would make strikes less likely.  But, in 1925, the coal, steel, and oil industries were critical parts of the U.S. economy. A nationwide coal strike would be far more devastating to the economy than a strike at a single shipping company.  Flowers’ lawyer similarly asserted that Congress chose to treat the transportation industry differently because “there are third party effects that cascade for the customers who have their goods on the rails.”  It’s as though he’s unfamiliar with the concept of raw materials – even in 1925, if the steel industry had shut down, it would have had a massive impact on manufacturing and construction.

It wasn’t that surprising that Justice Kavanaugh would incorrectly assert, “Congress didn’t want anyone outside of arbitration.  They wanted [the FAA] for most workers and then not for seamen and railroad employees because there was a separate arbitration regime,” but where were Justices Jackson, Kagan, or Sotomayor to point out that in 1925 Congress had no power to impose arbitration on anyone who was not involved in the actual movement of goods? 

This case presents yet another instance of the tension between textualism and the Court’s right-wing agenda.  Back in Circuit City, the Court (in Justice Stevens’ words) “play[ed] ostrich” to the “substantial history” behind the exemption.  Instead the Court majority asserted that “the conclusion we reach today is directed by the text” of the statute.  Now, the right-wing majority seems inclined to narrow the exemption even further, without regard for that text.  Justice Kavanaugh told Flowers’ lawyer, “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.”  That comment suggested that Kavanaugh was going to do his part to ensure that the company doesn’t lose.

The right-wing Justices love to denigrate legislative history – the statements by bill sponsors, the testimony at Congressional hearings, and the reports issued by Congressional committees explaining the rationale for legislation.  It would be bad enough if the Justices relied exclusively on the text of legislation.  But, instead, the Justices are now replacing legislative history with rank speculation about Congressional intent.  If the Court rules for Flowers in this case, it will almost certainly be based on unsupported conjecture about the reasons why Congress made a conscious decision to exempt only transportation workers from the FAA – a decision that Congress never made.

This ought to be an easy case despite the Court’s mistake in Circuit City.  In Circuit City, the Court held that the FAA exempts “contracts of employment of transportation workers.”  The two plaintiffs here are truck drivers – a class of transportation workers who closely resemble “seamen” or “railroad employees” in that their work consists of moving goods or people.  The only obstacle to this straightforward conclusion is that the right-wing Justices like the regime the Court has created where workers have to sign mandatory arbitration agreements whenever they start a new job.  Several Justices seemed to suggest that the Court could issue a narrow ruling that drivers do not need to work for trucking companies to claim the exemption, and in a future case limit the exemption to drivers who regularly cross state lines, so that big corporations can continue to impose arbitration agreements on so-called “last mile” drivers.  While there is no evidence that Congress ever intended the FAA to apply to any workers, just seven years after it enacted the FAA, Congress made a finding that “the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor.”  That’s still true today, and if there were any justice, it would guide the Court’s opinion in this case.

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