WEBVTT 1 00:00:02.439 --> 00:00:06.919 Welcome to sco Discast, a project of the Federalist Society for Law and Public 2 00:00:06.960 --> 00:00:11.800 Policy Studies. Our contributors joined us from around the country to bring you expert 3 00:00:11.800 --> 00:00:16.679 commentary on US Supreme Court cases as they are argued and the decisions are issued. 4 00:00:16.960 --> 00:00:21.559 The Federalist Society takes no position on particular legal or public policy issues. 5 00:00:21.800 --> 00:00:29.320 All expressions are those of the speaker. Hello, and welcome to scot Discast. 6 00:00:29.600 --> 00:00:33.439 I'm your host, Kyle hammernis On behalf of the Faculty division of the 7 00:00:33.479 --> 00:00:39.600 Federalist Society. We are here today to discuss Bisonette versus Lapage Bakeries Park Street, 8 00:00:39.840 --> 00:00:44.479 LLC, in which the Supreme Court issued a nine zero decision on April 9 00:00:44.520 --> 00:00:49.439 twelfth, twenty twenty four. It is my honor to introduce our guests today, 10 00:00:49.799 --> 00:00:55.640 Professor Samuel Striker. Professor Striker is the Dwight d. Opperman Professor of 11 00:00:55.759 --> 00:01:00.520 Law and the director of the Center of Labor at New York University of Law. 12 00:01:00.039 --> 00:01:03.840 And with that, I'd like to turn things over to our guest to 13 00:01:03.920 --> 00:01:07.040 discuss the overview of the case and the Court's decision. Hi, thank you, 14 00:01:07.120 --> 00:01:11.799 Kyle. I had written an amicus brief in this case is called Biscinet 15 00:01:12.000 --> 00:01:17.319 versus the Page Bakery workers. The case has to do with an exception to 16 00:01:17.359 --> 00:01:22.560 the Federal Arbitration Act, which was a nineteen twenty statute. Federal statue that 17 00:01:22.640 --> 00:01:30.400 requires that all arbitration agreements are enforceable has written in a very important law in 18 00:01:30.480 --> 00:01:38.079 advancing employment arbitration and other arbitration of other kinds of disputes as well. Many 19 00:01:38.120 --> 00:01:45.560 states have similar statutes this. The federal statue has an exception in it for 20 00:01:46.000 --> 00:01:52.359 I'll just reach you the language contracts of employment of cmen, railroad employees, 21 00:01:53.000 --> 00:01:57.599 or any other class of workers engaged in foreign or interstate commerce. So the 22 00:01:57.719 --> 00:02:06.159 question in Bisonette was the plaintiffs in this case were drivers for the Page bakeres. 23 00:02:06.239 --> 00:02:10.439 The Page Bakery is one of the biggest baked goods manufacturers and deliveries in 24 00:02:10.520 --> 00:02:19.400 the country, and these folks drove those trucks bringing the baked goods to particular 25 00:02:19.479 --> 00:02:24.280 retail outlets in Connecticut. They also had some quasi salesman functions. This is 26 00:02:24.319 --> 00:02:30.400 something very common in the baked goods area, where the deliver also has to 27 00:02:30.400 --> 00:02:35.960 sort of make sure that the product is properly displayed, that it's displayed at 28 00:02:36.039 --> 00:02:40.800 a level where the customer sees it and also introduces a new product sales. 29 00:02:40.840 --> 00:02:50.439 This is very common. I know this from my experience representing Free Dela, 30 00:02:51.240 --> 00:02:53.800 in which they do the same thing. So the question was whether these workers 31 00:02:53.800 --> 00:03:00.639 are covered by the exception. They're obviously engaged in transportation tasks. It's not 32 00:03:00.759 --> 00:03:05.520 clear. It's not clear that a majority of their tasks. We'll talk about 33 00:03:05.520 --> 00:03:08.159 that in a moment, but the assumption is for purposes of the decision, 34 00:03:08.400 --> 00:03:13.639 which by the way, was nine zero, which is not that which is 35 00:03:13.680 --> 00:03:16.759 not that common in the Supreme Court. But it was a nine zero decision 36 00:03:17.360 --> 00:03:23.759 for the drivers, for the drivers against the page of bakeries. The question 37 00:03:23.000 --> 00:03:30.159 is is this an industry based exception or is it just individual workers. It 38 00:03:30.199 --> 00:03:35.840 was an industry based exception, then we'd like to know what industry these drivers 39 00:03:35.879 --> 00:03:39.120 were working in. And it would seem it seemed to me anyway writing the 40 00:03:39.120 --> 00:03:45.840 Ambi his grief, that they were engaged in a retail bakery business or a 41 00:03:45.879 --> 00:03:50.560 wholesale bakery business, but they were not engaged in a transportation industry. They 42 00:03:50.599 --> 00:03:54.319 were doing incidental tasks. They were important tasks, but tasks for the bakery, 43 00:03:55.520 --> 00:04:01.400 but they themselves were not in a transportation industry. And our argument in 44 00:04:01.400 --> 00:04:08.680 our brief was that Congress actually meant a kind of industry based exception because they 45 00:04:08.719 --> 00:04:15.000 were trying to exempt from the Federal Arbitration Act workers and industries that were already 46 00:04:15.199 --> 00:04:21.600 regulated by the federal government and had already provided for dispute resolution mechanism. So 47 00:04:21.639 --> 00:04:27.959 that was the basic theory of our amethust brief that if you look at the 48 00:04:28.079 --> 00:04:30.040 language, but you look at it in the light of the purpose. The 49 00:04:30.079 --> 00:04:34.959 purpose was to exempt industries that were already regulated by Congress, that had already 50 00:04:34.959 --> 00:04:41.519 provided for dispute resolution machinery, which might conflict with the basic model of the 51 00:04:41.560 --> 00:04:46.560 court based Federal Arbitration Act. That was our theory. We thought there was 52 00:04:46.600 --> 00:04:49.079 some support for it. We knew there was some support for it in Circuit 53 00:04:49.160 --> 00:04:53.240 City, which is the case I was also involved in. And so that 54 00:04:53.360 --> 00:05:00.199 was the theory of the amicist brief. The Supreme Court nine to zero basically 55 00:05:00.439 --> 00:05:05.720 rely in part relying on a textual analysis in which they say that the focus 56 00:05:05.759 --> 00:05:10.839 of the exemption that I've read to you is a worker based exemption. I'm 57 00:05:10.879 --> 00:05:15.279 not sure the textual analysis goes quite as far as the court says, because 58 00:05:15.319 --> 00:05:19.720 it says contracts of employment have seen in railroad employees, any other class workers 59 00:05:20.279 --> 00:05:28.920 engaged in foreigner interstate commerce. And I thought Euston generous the examples. We 60 00:05:29.040 --> 00:05:31.800 control the residual glass, but that's not what the court holds. The court 61 00:05:31.800 --> 00:05:35.800 holes and so they're basing it on a so called textual analysis. But it's 62 00:05:35.839 --> 00:05:42.360 not clear that the text really carries the court as far as its thought. 63 00:05:42.800 --> 00:05:47.040 But they're also basing it on a decision previously decided by the Supreme Court which 64 00:05:47.120 --> 00:05:56.199 involved ramp agents for Southwest Airlines Airlines. This case is called Saxon Saxo n 65 00:05:56.639 --> 00:06:00.120 versus Southwest Airlines, and the question in that case was whether or not the 66 00:06:00.240 --> 00:06:08.639 ramp agents were engaged in a transportation industry. The Supreme Court rejected the argument 67 00:06:08.800 --> 00:06:14.480 of Southwest Airlines that it was an industry based analysis. In other words, 68 00:06:14.519 --> 00:06:19.079 that we couldn't say that everyone that works with Southwest Airlines is a transportation worker. 69 00:06:19.319 --> 00:06:25.680 We have to get the actual tasks of the particular worker. So and 70 00:06:25.759 --> 00:06:30.319 Saxon had language that the focus is on what the worker does, not on 71 00:06:30.439 --> 00:06:33.720 what the employer does. That was the language, and arguably that language was 72 00:06:33.759 --> 00:06:39.439 fairly broad and could have been narrow to decide the case. But that's the 73 00:06:39.560 --> 00:06:45.000 language, and it was also a unanimous decision. The Chief Judge did not 74 00:06:45.120 --> 00:06:47.639 participate for other reasons. It was eight zero. So you have an eight 75 00:06:47.720 --> 00:06:54.360 zero decision of the Supreme Court that has language that says it's an industry based 76 00:06:54.839 --> 00:07:00.160 It's not an industry based exemption. It is a worker based exemption. So 77 00:07:00.759 --> 00:07:04.839 what the Supreme Court did, going back to bisin f versus Lapage bakeries nine 78 00:07:05.040 --> 00:07:12.759 zero, relying in part on a textual analysis and in part on the language 79 00:07:12.800 --> 00:07:17.399 that was used in Saxon, which I think was broader than necessary to decide 80 00:07:17.399 --> 00:07:21.199 the case inex and any of them. That's where we are. The Court 81 00:07:21.279 --> 00:07:28.040 said that there were certain open questions that it was not decided, so I'll 82 00:07:28.079 --> 00:07:33.120 read them to you. One question was whether these people were transportation workers. 83 00:07:34.279 --> 00:07:40.959 Well, they were transportation workers in a sense most of their task. We'd 84 00:07:40.959 --> 00:07:46.199 have to do it. We'd have to do a time at time analysis of 85 00:07:46.319 --> 00:07:48.839 their time. And maybe this is truly an open question, looking at whether 86 00:07:48.920 --> 00:07:55.800 or not the majority of their time was spent in these various sales functions, 87 00:07:55.839 --> 00:08:01.879 sales promotion functions, or was a majority of their time spent in transportation and 88 00:08:01.920 --> 00:08:07.639 that would be something on Reman. The court repeated language from Saxon that the 89 00:08:07.680 --> 00:08:13.319 workers have to be actively engaged in interstate commerce. They have to have a 90 00:08:13.360 --> 00:08:18.399 direct and necessary role in interstate commerce. I don't like to make short term 91 00:08:18.439 --> 00:08:22.319 predictions, but I'm not sure this is going to be much of an avenue 92 00:08:22.720 --> 00:08:26.000 for the page, but I'm sure they got to try to pursue it. 93 00:08:28.079 --> 00:08:33.039 Another question is really interesting is they left open whether these workers were engaged in 94 00:08:33.120 --> 00:08:39.279 foreigner interstate sorry, whether these drivers were engaged in foreigner in state commerce because 95 00:08:39.279 --> 00:08:46.519 they delivered only in Connecticut. This is really interesting because I think some members 96 00:08:46.559 --> 00:08:48.639 of the court would like to go back to a narrower version of the commerce 97 00:08:48.679 --> 00:08:54.519 boss in Article one, Section eight, and there are other cases that have 98 00:08:54.600 --> 00:08:58.679 been filed with the Sambrinko raising the same issue. I happen to be a 99 00:08:58.759 --> 00:09:03.960 Natists. I know that I'm on a fedsock program, but I'm a nationalist 100 00:09:03.120 --> 00:09:09.679 and I wrote an enormous paper in high school on Frankfurt and the commerce clause. 101 00:09:09.159 --> 00:09:13.799 So I'd hate to see us going back to a view of the commerce 102 00:09:13.799 --> 00:09:18.440 closure said, until it gets into interstate commerce, it's not within the power 103 00:09:18.480 --> 00:09:24.600 of Congress to regulate. These people may have sold only in Connecticut, but 104 00:09:26.000 --> 00:09:28.960 their ingredients, I'm sure came from other places in the country, so that 105 00:09:30.039 --> 00:09:35.440 needs to be examined as well. So those are two open questions. Let 106 00:09:35.440 --> 00:09:39.000 me offer you a third one that is not mentioned by the Supreme Court. 107 00:09:39.440 --> 00:09:45.399 Many states and some localities have similar statutes to the Federal Arbitration Statute, in 108 00:09:45.399 --> 00:09:52.320 which they say that you know these contracts are enforceable as written. Well, 109 00:09:52.480 --> 00:09:56.639 there'll be different language, but the basic idea is that arbitration agreements are enforceable 110 00:09:56.840 --> 00:10:01.399 because the old common law. The old common law was that arbitration agreements were 111 00:10:01.399 --> 00:10:07.840 not enforceable until they were reduced to an award, that you can sort of 112 00:10:07.879 --> 00:10:11.360 opt out of arbitration at any point until they were reduced to an award, 113 00:10:11.000 --> 00:10:16.480 and the Federal Arbitration Act was intended to override that common law. The position 114 00:10:16.559 --> 00:10:20.320 as worth these state laws. So the question is, could could a bakery 115 00:10:20.440 --> 00:10:26.759 like the page say, well, maybe not enforceable under the Federal Arbitration actors 116 00:10:26.759 --> 00:10:31.279 they fall within his transportation worker exception. But maybe they're enforceable under a state 117 00:10:31.360 --> 00:10:35.080 law. Now we'd have to look at the text of the state law, 118 00:10:35.120 --> 00:10:43.399 and a state law could not in fact override federal statutory provision. So to 119 00:10:43.440 --> 00:10:50.559 the extent the page wants the benefit of an implicit jury trial waiver whenever you 120 00:10:50.600 --> 00:10:56.279 have arbitration, that may not apply if you're only relying on the state statue. 121 00:10:56.320 --> 00:11:00.840 This is an opening question, by the way, an open question. 122 00:11:01.240 --> 00:11:07.039 I'm just pointing out it's a third open question. Uh, that will have 123 00:11:07.080 --> 00:11:13.000 to be dissolved down the road. Anything else I can give you, Sarah, 124 00:11:13.120 --> 00:11:16.120 Yeah, so I think you know, could you go a little bit 125 00:11:16.159 --> 00:11:24.039 more, maybe explain a little bit more how the the court came to a 126 00:11:24.480 --> 00:11:30.279 So basically, the exception is that this is a worker who has some functions 127 00:11:30.320 --> 00:11:37.399 in an industry or has some functions that in another industry are covered right by 128 00:11:37.440 --> 00:11:43.200 this federal statue. Am I getting there? None? Zip is that it's 129 00:11:43.240 --> 00:11:48.480 an industry based except sorry, it's a worker based exception. It looks so 130 00:11:48.080 --> 00:11:54.120 could you could you explain the difference in how you would read an industry based 131 00:11:54.120 --> 00:11:58.320 exception versus a worker based exception. Now, after this this case, I 132 00:11:58.360 --> 00:12:03.960 don't think it's going to work under the Federal Arbitration Act. So the question 133 00:12:03.080 --> 00:12:07.639 is, is Congress and passing on the statute very unlikely. The plane off 134 00:12:07.639 --> 00:12:13.039 bar and their friends and allies and Congress hate arbitration even though it's good for 135 00:12:13.120 --> 00:12:16.720 most workers. That's been my view, because they get a hearing. So 136 00:12:16.799 --> 00:12:20.879 I don't think we're going to see new legislation for quite some time. So 137 00:12:22.039 --> 00:12:26.120 that's why I brought up the two open questions of the court mentioned. Yeah, 138 00:12:26.960 --> 00:12:31.039 the application of state and local law, Okay, possible some states would 139 00:12:31.039 --> 00:12:37.759 take an industry based view of their statues. It's their statutes. We're talking 140 00:12:37.759 --> 00:12:41.200 about the state statutes, state laws. So that's a possibility. And the 141 00:12:41.240 --> 00:12:46.799 other possibilities that these folks, even though they were involved in transportation desks, 142 00:12:46.320 --> 00:12:50.440 they spent them, you know, the predominant part of their time in the 143 00:12:50.519 --> 00:12:54.840 sales function. You know, based on my experience many many years ago, 144 00:12:54.879 --> 00:12:58.320 I'd say thirty years ago, as Freedo lay, I don't think it's likely. 145 00:13:00.279 --> 00:13:03.600 I think it's likely most of their time has spent delivering goods. But 146 00:13:03.720 --> 00:13:07.480 that's a factual question has to be resolved. The other question I mentioned to 147 00:13:07.480 --> 00:13:13.519 you is really interesting are they engaged interstate commerce when they sell all in Connecticut? 148 00:13:15.600 --> 00:13:18.919 So that is something I'm sure Lapage Bakery is going to focus on. 149 00:13:18.639 --> 00:13:22.679 I say that other station is doing this as well, and maybe we could 150 00:13:22.679 --> 00:13:28.799 have a Scotis interview on that. There's a recent decision striking down the Corporate 151 00:13:28.840 --> 00:13:35.120 Transparency Act in part. This is an act that requires everyone that is planning 152 00:13:35.159 --> 00:13:41.039 in corporation to file information with the United States government. And one of the 153 00:13:41.159 --> 00:13:46.720 arguments is that when you have started a corporation but you haven't done anything yet, 154 00:13:46.759 --> 00:13:52.080 you're not an interstate commerce. So that's an important case CTA, the 155 00:13:52.279 --> 00:13:56.720 Corporate Transparency Act, which I advise you to have a Scotis interview on. 156 00:13:56.840 --> 00:14:05.559 And the best person there would be my good friend Thomas Lee from Fordham University, 157 00:14:05.720 --> 00:14:09.279 because he argued this he won in a district court. Let me assure 158 00:14:09.279 --> 00:14:13.559 you this is on appeal and there's going to be a lot of contention around 159 00:14:13.639 --> 00:14:18.279 it because it's the same issue I just highlighted for you. Is it within 160 00:14:18.440 --> 00:14:24.600 the power of Congress under the Interstate Commerce claws to regulate activities before they actually 161 00:14:24.720 --> 00:14:30.279 enter into the stream of interstate Nice thank you for listening to this episode of 162 00:14:30.279 --> 00:14:33.799 SCO Discast. 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