Welcome to sco Discast, a project of the Federalist Society for Law and Public Policy Studies. Our contributors joined us from around the country to bring you expert commentary on US Supreme Court cases as they are argued and the decisions are issued. The Federalist Society takes no position on particular legal or public policy issues. All expressions are those of the speaker. Hello, and welcome to scot Discast. I'm your host, Kyle hammernis On behalf of the Faculty division of the
Federalist Society. We are here today to discuss Bisonette versus Lapage Bakeries Park Street, LLC, in which the Supreme Court issued a nine zero decision on April twelfth, twenty twenty four. It is my honor to introduce our guests today, Professor Samuel Striker. Professor Striker is the Dwight d. Opperman Professor of Law and the director of the Center of Labor at New York University of Law. And with that, I'd like to turn things over to our guest to
discuss the overview of the case and the Court's decision. Hi, thank you, Kyle. I had written an amicus brief in this case is called Biscinet versus the Page Bakery workers. The case has to do with an exception to the Federal Arbitration Act, which was a nineteen twenty statute. Federal statue that requires that all arbitration agreements are enforceable has written in a very important law in advancing employment arbitration and other arbitration of other kinds of disputes as well. Many
states have similar statutes this. The federal statue has an exception in it for I'll just reach you the language contracts of employment of cmen, railroad employees, or any other class of workers engaged in foreign or interstate commerce. So the question in Bisonette was the plaintiffs in this case were drivers for the Page bakeres.
The Page Bakery is one of the biggest baked goods manufacturers and deliveries in the country, and these folks drove those trucks bringing the baked goods to particular retail outlets in Connecticut. They also had some quasi salesman functions. This is something very common in the baked goods area, where the deliver also has to sort of make sure that the product is properly displayed, that it's displayed at a level where the customer sees it and also introduces a new product sales.
This is very common. I know this from my experience representing Free Dela, in which they do the same thing. So the question was whether these workers are covered by the exception. They're obviously engaged in transportation tasks. It's not clear. It's not clear that a majority of their tasks. We'll talk about that in a moment, but the assumption is for purposes of the decision, which by the way, was nine zero, which is not that which is
not that common in the Supreme Court. But it was a nine zero decision for the drivers, for the drivers against the page of bakeries. The question is is this an industry based exception or is it just individual workers. It was an industry based exception, then we'd like to know what industry these drivers were working in. And it would seem it seemed to me anyway writing the Ambi his grief, that they were engaged in a retail bakery business or a
wholesale bakery business, but they were not engaged in a transportation industry. They were doing incidental tasks. They were important tasks, but tasks for the bakery, but they themselves were not in a transportation industry. And our argument in our brief was that Congress actually meant a kind of industry based exception because they were trying to exempt from the Federal Arbitration Act workers and industries that were already
regulated by the federal government and had already provided for dispute resolution mechanism. So that was the basic theory of our amethust brief that if you look at the language, but you look at it in the light of the purpose. The purpose was to exempt industries that were already regulated by Congress, that had already provided for dispute resolution machinery, which might conflict with the basic model of the court based Federal Arbitration Act. That was our theory. We thought there was
some support for it. We knew there was some support for it in Circuit City, which is the case I was 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 textual analysis in which they say that the focus
of the exemption that I've read to you is a worker based exemption. I'm not sure the textual analysis goes quite as far as the court says, because it says contracts of employment have seen in railroad employees, any other class workers engaged in foreigner interstate commerce. And I thought Euston generous the examples. We control the residual glass, but that's not what the court holds. The court
holes and so they're basing it on a so called textual analysis. But it's not clear that the text really carries the court as far as its thought. But they're also basing it on a decision previously decided by the Supreme Court which involved ramp agents for Southwest Airlines Airlines. This case is called Saxon Saxo n versus Southwest Airlines, and the question in that case was whether or not the ramp agents were engaged in a transportation industry. The Supreme Court rejected the argument
of Southwest Airlines that it was an industry based analysis. In other words, that we couldn't say that everyone that works with Southwest Airlines is a transportation worker. We have to get the actual tasks of the particular worker. So and Saxon had language that the focus is on what the worker does, not on what the employer does. That was the language, and arguably that language was fairly broad and could have been narrow to decide the case. But that's the
language, and it was also a unanimous decision. The Chief Judge did not participate for other reasons. It was eight zero. So you have an eight zero decision of the Supreme Court that has language that says it's an industry based
It's not an industry based exemption. It is a worker based exemption. So what the Supreme Court did, going back to bisin f versus Lapage bakeries nine zero, relying in part on a textual analysis and in part on the language that was used in Saxon, which I think was broader than necessary to decide the case inex and any of them. That's where we are. The Court said that there were certain open questions that it was not decided, so I'll
read them to you. One question was whether these people were transportation workers. Well, they were transportation workers in a sense most of their task. We'd have to do it. We'd have to do a time at time analysis of
their time. And maybe this is truly an open question, looking at whether or not the majority of their time was spent in these various sales functions, sales promotion functions, or was a majority of their time spent in transportation and that would be something on Reman. The court repeated language from Saxon that the workers have to be actively engaged in interstate 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 this is going to be much of an avenue for the page, but I'm sure they got to try to pursue it. Another question is really interesting is they left open whether these workers were engaged in foreigner interstate sorry, whether these drivers were engaged in foreigner in state commerce because
they delivered only in Connecticut. This is really interesting because I think some members of the court would like to go back to a narrower version of the commerce boss in Article one, Section eight, and there are other cases that have been filed with the Sambrinko raising the same issue. I happen to be a Natists. I know that I'm on a fedsock program, but I'm a nationalist and I wrote an enormous paper in high school on Frankfurt and the commerce clause.
So I'd hate to see us going back to a view of the commerce closure said, until it gets into interstate commerce, it's not within the power of Congress to regulate. These people may have sold only in Connecticut, but their ingredients, I'm sure came from other places in the country, so that needs to be examined as well. So those are two open questions. Let me offer you a third one that is not mentioned by the Supreme Court.
Many states and some localities have similar statutes to the Federal Arbitration Statute, in which they say that you know these contracts are enforceable as written. Well, there'll be different language, but the basic idea is that arbitration agreements are enforceable because the old common law. The old common law was that arbitration agreements were not enforceable until they were reduced to an award, that you can sort of opt out of arbitration at any point until they were reduced to an award,
and the Federal Arbitration Act was intended to override that common law. The position as worth these state laws. So the 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 look at the text of the state law,
and a state law could not in fact override federal statutory provision. So to the extent the page wants the benefit of an implicit jury trial waiver whenever you have arbitration, that may not apply if you're only relying on the state statue. This is an opening question, by the way, an open question. I'm just pointing out it's a third open question. Uh, that will have
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 bit more how the the court came to a So basically, the exception is that this is a worker who has some functions in an industry or has some functions that in another industry are covered right by this federal statue. Am I getting there? None? Zip is that it's
an industry based except sorry, it's a worker based exception. It looks so could you could you explain the difference in how you would read an industry based exception versus a worker based exception. Now, after this this case, I don't think it's going to work under the Federal Arbitration Act. So the question is, is Congress and passing on the statute very unlikely. The plane off bar and their friends and allies and Congress hate arbitration even though it's good for
most workers. That's been my view, because they get a hearing. So I don't think we're going to see new legislation for quite some time. So that's why I brought up the two open questions of the court mentioned. Yeah, the application of state and local law, Okay, possible some states would take an industry based view of their statues. It's their statutes. We're talking
about the state statutes, state laws. So that's a possibility. And the other possibilities that these folks, even though they were involved in transportation desks, they spent them, you know, the predominant part of their time in the sales function. You know, based on my experience many many years ago, I'd say thirty years ago, as Freedo lay, I don't think it's likely. I think it's likely most of their time has spent delivering goods. But
that's a factual question has to be resolved. The other question I mentioned to you is really interesting are they engaged interstate commerce when they sell all in Connecticut? So that is something I'm sure Lapage Bakery is going to focus on. I say that other station is doing this as well, and maybe we could have a Scotis interview on that. There's a recent decision striking down the Corporate Transparency Act in part. This is an act that requires everyone that is planning
in corporation to file information with the United States government. And one of the arguments is that when you have started a corporation but you haven't done anything yet, you're not an interstate commerce. So that's an important case CTA, the Corporate Transparency Act, which I advise you to have a Scotis interview on. And the best person there would be my good friend Thomas Lee from Fordham University,
because he argued this he won in a district court. Let me assure you this is on appeal and there's going to be a lot of contention around it because it's the same issue I just highlighted for you. Is it within the power of Congress under the Interstate Commerce claws to regulate activities before they actually enter into the stream of interstate Nice thank you for listening to this episode of
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