[00:00:00] Speaker 04: Let's turn to number two, 25-1211, Joyner versus Frontier Airlines. [00:00:05] Speaker 04: Mr. Ward for the appellant. [00:00:08] Speaker 02: Good morning. [00:00:08] Speaker 02: May it please the court. [00:00:09] Speaker 02: Christopher Ward on behalf of Appellants, Menzies Aviation and Frontier Airlines. [00:00:13] Speaker 02: My hope is to have about three minutes for rebuttal. [00:00:16] Speaker 02: We'll see how that goes. [00:00:18] Speaker 02: Your Honors, I submit that the most significant question for this court to resolve it is not whether to reverse, but what to do with the order to reverse, considering the degree of error that the district court committed here and its misapplication of the Sachs and framework. [00:00:34] Speaker 02: And it's fair to follow that analysis. [00:00:36] Speaker 02: Now, the district court explicitly indicated that it was going to look at that first step by focusing on plainness. [00:00:43] Speaker 02: And that's, in fact, what it did, and that's what it did in the order. [00:00:47] Speaker 02: And that's legal error. [00:00:48] Speaker 02: Right? [00:00:49] Speaker 02: And to date, the district court is, as far as I can tell, the only court that has done taxes first step analysis in this way. [00:00:58] Speaker 02: And equally erroneous was the district court's decision to find that these plaintiffs. [00:01:02] Speaker 02: And you look at the order, he refers regularly to these plaintiffs as opposed to the class of workers. [00:01:10] Speaker 02: But it was erroneous to find that these plaintiffs are transportation workers without any consideration for how frequently they are performing [00:01:17] Speaker 02: what might be qualifying as transportation worker duties. [00:01:22] Speaker 02: Instead, the district court to these concepts of gatekeeping and overseeing and being enmeshed in a much larger transportation system. [00:01:32] Speaker 02: And that's how the district court found Saxon's second step satisfied. [00:01:37] Speaker 05: How do you deal with Brock versus the Brock case? [00:01:41] Speaker 05: Because in Brock, as I understand it, the last leg driver [00:01:47] Speaker 05: never transported anything in interstate commerce. [00:01:54] Speaker 05: And we still concluded, as a matter of law, that they were transportation workers. [00:01:58] Speaker 02: Correct, Your Honor. [00:01:59] Speaker 02: And quite frankly, I don't think the Brock case is on point in this. [00:02:03] Speaker 02: We're not arguing the interstate intrastate dichotomy in this case. [00:02:08] Speaker 02: And that's really what Brock boils down to. [00:02:09] Speaker 02: In Brock, the class of workers analysis, which is the first step of the SACS analysis, wasn't in dispute. [00:02:16] Speaker 02: How the district court [00:02:18] Speaker 02: and how this court defined the class of workers clearly focused on the actual class. [00:02:23] Speaker 02: And our point here is the district court didn't focus on the class of workers. [00:02:27] Speaker 02: It focused on the plaintiffs. [00:02:28] Speaker 05: Well, let's say we conducted an overview and we say, well, the last leg drivers in Brock were part of a single uninterrupted chain of events that resulted in the transportation of goods [00:02:47] Speaker 05: interstate, those drivers didn't necessarily transport anything interstate, much like the CSA workers. [00:02:56] Speaker 05: Let's say the ticket agents, hypothetically, may not have actually transported goods or even held goods, but that they were part, the argument would be, that Benzies and Frontier Mac is that they would, in an essence, be part of that single unbroken chain [00:03:15] Speaker 05: Much like the last leg drivers in Brock. [00:03:18] Speaker 05: That's my question. [00:03:19] Speaker 02: I understand the question, Your Honor, and I think there's two distinctions there. [00:03:22] Speaker 02: One is, again, in Brock, the class of workers were, in fact, transporting things. [00:03:28] Speaker 02: There's no dispute that they were actually the ones transporting the goods. [00:03:32] Speaker 02: And the question at that court and what's before the Supreme Court right now is, what does it mean to be sort of the last mile transporter? [00:03:39] Speaker 02: Is that sufficient? [00:03:41] Speaker 02: Again, the district court here didn't find that they were transporting goods. [00:03:45] Speaker 02: What the district court found here was that they were enmeshed in a transportation system. [00:03:50] Speaker 02: They were gatekeepers to passengers transporting their own goods. [00:03:54] Speaker 02: They were overseeing other people doing the actual transportation. [00:03:59] Speaker 02: And if you read Circuit City, Saxon, and Bissonnette together, you get a very clear statement of what a transportation worker is in my view. [00:04:09] Speaker 02: Circuit City says this is a narrow exemption. [00:04:12] Speaker 02: Saxon says, here's how you resolve it. [00:04:15] Speaker 02: You define the class of workers. [00:04:16] Speaker 02: Once you know what that class of workers is, and again, you focus on the class, not the plaintiffs. [00:04:21] Speaker 02: You focus on the class. [00:04:23] Speaker 02: And once you've done those things, then you decide, are they engaged in interstate transportation or not? [00:04:27] Speaker 02: And Beeson says, it's not an industry-based analysis. [00:04:31] Speaker 02: It is, what do the class of workers themselves do? [00:04:34] Speaker 02: And I submit to the court here that the district court is saying, [00:04:38] Speaker 02: This class of workers are, in fact, these plaintiffs because that's what the district court did. [00:04:43] Speaker 02: They don't transport anything. [00:04:44] Speaker 02: They lift, they weigh, they help passengers, but primarily their job is customer service. [00:04:50] Speaker 02: And they work with an infrastructure where conveyors can transport the baggage or passengers transport the baggage. [00:04:56] Speaker 04: Aren't these plaintiffs, though, exemplary of the work that all customer service agents do? [00:05:03] Speaker 04: I mean, maybe the district court erred by focusing on the plaintiffs, [00:05:08] Speaker 04: The work they do is work that is generally done by every employee that is up at the ticket counters, right? [00:05:19] Speaker 02: I just agree. [00:05:20] Speaker 02: You know, the district court flat out told us during the evidentiary hearing, he wasn't interested in evidence about the other workers. [00:05:27] Speaker 02: And this is on, you know, volume two of the record, pages 425. [00:05:32] Speaker 04: We have the Menzies job description. [00:05:38] Speaker 04: Doesn't that tell most of the story? [00:05:41] Speaker 02: And then I guess I would say, yes, the job description is useful. [00:05:44] Speaker 02: And you've got a number of cases we cite in our brief that say job descriptions are useful, but the inquiry needs to go beyond that. [00:05:49] Speaker 02: Because job descriptions are intentionally sort of vague. [00:05:52] Speaker 02: And you don't know for sure what every single person is going to do. [00:05:55] Speaker 02: And so we attempted to introduce evidence. [00:05:57] Speaker 02: And there is evidence in the record. [00:05:59] Speaker 02: There's objective evidence in the record, video footage of CSAs never touching a bag. [00:06:05] Speaker 02: There is objective evidence in the record [00:06:09] Speaker 02: that shows what they are actually doing. [00:06:11] Speaker 02: And then we did submit the testimony of somebody who trains these workers. [00:06:16] Speaker 02: Trisha Moreno testified at the hearing and she trains this classification of workers. [00:06:21] Speaker 02: She supervises this classification of workers and she testified that what the plaintiffs said about their job is incredibly hyperbolic. [00:06:29] Speaker 02: And if you read my cross examination of the plaintiffs, they went from exaggerating how much they were working with baggage from [00:06:36] Speaker 02: This is all we do. [00:06:38] Speaker 02: It's 100% of every shift every day. [00:06:40] Speaker 02: And I said, no, no, let's get granular. [00:06:42] Speaker 02: I want numbers. [00:06:43] Speaker 02: And you read their class examination, and all day, every day, finally became something like, it's a handful of passengers out of every hour, and I see at least 100 passengers every hour. [00:06:54] Speaker 03: Mr. Ward, is it the defendant's position that if the evidence were that there [00:07:05] Speaker 03: these customer service agents seldom or never touch the bags. [00:07:16] Speaker 03: Is it your position, is it they have to at least touch the bags and move them to be a transportation worker? [00:07:25] Speaker 02: I think that's an easy way to understand the Saxon analysis. [00:07:28] Speaker 02: I don't know that that is exactly how a court would apply Saxon. [00:07:32] Speaker 03: I'm asking the position of the defendants. [00:07:35] Speaker 02: Our position in this case, Your Honor, based on this record is that... I'm asking a hypothetical. [00:07:41] Speaker 03: Sure. [00:07:42] Speaker 03: I don't... That is, do you say they have to handle, touch the bags regularly? [00:07:51] Speaker 02: The answer is no, Your Honor. [00:07:53] Speaker 02: That is not our position. [00:07:55] Speaker 02: Our position is they have to transport them. [00:07:58] Speaker 03: And I understand that maybe... You have a CSA agent. [00:08:02] Speaker 03: Let's take the ones at the carousel. [00:08:04] Speaker 03: or that are dealing firsthand with the flyer. [00:08:14] Speaker 03: Is that enough that they tell them what to do? [00:08:19] Speaker 03: Here's how you tag your bag. [00:08:21] Speaker 03: You know, you need to lift it up and say it there. [00:08:24] Speaker 03: Here's your boarding pass. [00:08:27] Speaker 03: Is that insufficient as a matter of law in your view to be a transportation worker? [00:08:34] Speaker 03: Yes, it is, Your Honor. [00:08:35] Speaker 02: That is our position. [00:08:36] Speaker 03: What do you do with the view in Saxon that said, and this is a quote, that they have a role in the flow of goods? [00:08:48] Speaker 03: Don't they have a role in the flow of goods, even if they generally don't touch the bags? [00:08:53] Speaker 03: In Saxon, the role that those... I'm talking about Saxon talking broadly in its statement that [00:09:03] Speaker 03: It's a question of what role they had in the flow of goods. [00:09:08] Speaker 02: And I think it is important to look at Saxon as a whole because the role in that case was ramp agent supervisors who spent a sufficient amount of their working time actually taking baggage and loading it onto an aircraft. [00:09:21] Speaker 02: And then if you look at the footnote in Saxon where they say we're not deciding the question about whether supervisors are transportation workers, but we acknowledge even that one step of removal. [00:09:32] Speaker 02: I am watching you do your job, that may be a different question. [00:09:37] Speaker 02: And so I think if you look at Saxon just at that level, and you apply Circuit City to it, which says this is a narrow exemption, a transportation worker has to actually transport the goods in some meaningful fashion. [00:09:49] Speaker 03: So you're saying they have to actually touch them on a regular basis? [00:09:53] Speaker 02: Not necessarily touch them, because I could give you the exemption of a truck driver who did not load the goods. [00:09:59] Speaker 02: but transported them across state lines. [00:10:02] Speaker 02: I would say that person is transporting the goods, notwithstanding the fact that they did not actually load them onto the truck. [00:10:09] Speaker 02: But they are still, in fact, directly transporting things here. [00:10:13] Speaker 04: Would the workers that loaded the cargo on the truck be entitled to the exemption? [00:10:18] Speaker 02: I think that that is the ramped agent case, Your Honor. [00:10:20] Speaker 02: That's the Saxon case. [00:10:22] Speaker 04: And well, are you saying that there's a frequency? [00:10:27] Speaker 04: I think there's a variation. [00:10:29] Speaker 04: we've been discussing, is there a frequency component to the Saxon step? [00:10:34] Speaker 02: There absolutely is. [00:10:35] Speaker 02: It's written into Saxon. [00:10:36] Speaker 05: Well, it was written into Saxon because it was undisputed that the ramp loaders frequently loaded goods onto and off of the plane. [00:10:49] Speaker 05: So it was certainly sufficient. [00:10:51] Speaker 05: And so as you pointed out, it would be a more difficult case in Saxon if it weren't the case. [00:10:57] Speaker 05: But how could you say that this is an undisputed fact in Saxon, and therefore it becomes, I mean, it's illogical to say that that is a requirement in every case just because that happened to be the undisputed fact in Saxon. [00:11:13] Speaker 02: Agreed, Your Honor. [00:11:14] Speaker 02: But that is the word Saxon used. [00:11:16] Speaker 02: And there are multiple courts that have taken Saxon's language and applied a frequency analysis. [00:11:22] Speaker 05: Other than Fraga 1? [00:11:23] Speaker 02: Fraga is one. [00:11:24] Speaker 02: There's multiple district courts that we've cited about it as well. [00:11:27] Speaker 02: They're in our briefing. [00:11:27] Speaker 02: Actually, there's one that neither party cited that I came across as we were preparing for. [00:11:31] Speaker 02: It's the Wilson versus Get It Now case. [00:11:34] Speaker 02: It's 2025 Westlaw 2304686. [00:11:39] Speaker 02: It's a District of Minnesota case from August of last year. [00:11:42] Speaker 02: I just realized this morning that it's actually the same firm represented in the plaintiffs here or represented in the plaintiffs in that case. [00:11:49] Speaker 02: And I think the district court's analysis in that case [00:11:51] Speaker 02: very fulsome. [00:11:52] Speaker 02: It looks at the class of workers, it looks at the frequency analysis, it looks at the burden of proof, and ultimately decides a district manager in that case who essentially says, I control the transportation process. [00:12:05] Speaker 02: The district court says that's not transportation if you control it. [00:12:08] Speaker 05: What if it's, let's say 25 years from now, and the CSA doesn't load, you know, doesn't do anything with [00:12:21] Speaker 05: the luggage other than put it on the conveyor belt. [00:12:24] Speaker 05: And then the CSA tells the, operates the conveyor belt and says, take that conveyor belt, this long conveyor belt, from Denver to Oklahoma City. [00:12:39] Speaker 05: There's no planes involved. [00:12:41] Speaker 05: They don't touch the bags. [00:12:43] Speaker 05: Are those CSA's transportation workers? [00:12:46] Speaker 02: I submit that they're not, Your Honor. [00:12:47] Speaker 02: They're not transporting the baggage. [00:12:49] Speaker 05: The machinery is. [00:12:51] Speaker 05: And they're operating the machinery. [00:12:54] Speaker 05: They're saying, hit the button, go. [00:12:56] Speaker 01: How far would that go, then, Your Honor, is my question. [00:12:59] Speaker 01: Well, OK. [00:13:01] Speaker 01: I mean, I guess we could both ask each other hypotheticals. [00:13:04] Speaker 05: But my hypothetical is, isn't that the problem with your argument, is that in response to Judge Murphy, whether or not they touch the bags, [00:13:16] Speaker 05: they a hundred percent of the time, at least those ticket agents, are operating that conveyor belt. [00:13:22] Speaker 05: And whether or not they're physically touching the bags, it's hitting the button to that conveyor belt that allows that bag to somehow end up on that plane. [00:13:33] Speaker 02: And I appreciate the hypothetical. [00:13:34] Speaker 02: My position is no, they're not transportation workers and it's not just me saying... Because they touch the bag as opposed to [00:13:42] Speaker 05: moving the bag through machinery. [00:13:44] Speaker 02: Because Circuit City says this is narrow, Saxon outlines for us how we apply this, and then Beesonet says this is very focused and we need to avoid industry. [00:13:55] Speaker 02: And I think that's part of the argument that the district court applied here is by saying they're enmeshed in the process. [00:14:01] Speaker 02: They're gatekeepers of other passengers doing it, not themselves, other passengers doing it. [00:14:06] Speaker 02: They are overseeing [00:14:08] Speaker 02: what other people do on some level. [00:14:09] Speaker 02: Everybody who works in this industry is a gatekeeper. [00:14:13] Speaker 02: Everybody who works in this industry in some fashion or another is overseeing the process. [00:14:17] Speaker 02: But this is a narrow exemption. [00:14:19] Speaker 02: And the Supreme Court has told us it is not based on what the employer does. [00:14:23] Speaker 02: It's based on what the class of workers does. [00:14:25] Speaker 02: And what the class of workers does here is customer service. [00:14:29] Speaker 04: I will give you some revital time, but why isn't the [00:14:33] Speaker 04: fact that at least some of the CSAs move bags, you know, from the customer to the conveyor belt. [00:14:43] Speaker 04: Why isn't that close enough to what the ramp people did in Saxon to entitle them to really the same analysis? [00:14:51] Speaker 02: And I think that goes back to the frequency question, Your Honors. [00:14:54] Speaker 02: Okay, occasionally, and the record is clear on this, occasionally these CSAs will assist a passenger. [00:14:59] Speaker 02: If they're not physically strong enough to move the bags, they will do it. [00:15:03] Speaker 02: But that is why I went to great lengths during the hearing to develop, all right, how often are you doing that? [00:15:10] Speaker 02: Because it matters. [00:15:10] Speaker 02: It matters under the Sachs analysis. [00:15:12] Speaker 02: And again, the plaintiffs were very hyperbolic in their testimony, but they were very imprecise. [00:15:18] Speaker 02: And I forced them to get precise. [00:15:21] Speaker 02: And when they got precise with numbers and time, it became far less than the Fraga cases used a 25%. [00:15:28] Speaker 02: We're talking about [00:15:30] Speaker 02: two to three percent of their time they're doing this stuff. [00:15:33] Speaker 02: And so if you apply frequency there, that's why it's not sufficient. [00:15:36] Speaker 05: All right. [00:15:36] Speaker 05: Thank you. [00:15:37] Speaker 05: Can I ask one question? [00:15:38] Speaker 05: Of course. [00:15:39] Speaker 05: I'm sorry to ask you this question, but I am really curious about it. [00:15:46] Speaker 05: You probably sat in on the last argument, and we have a fire chief. [00:15:51] Speaker 05: And let's say the fire chief is on the job for five years, and there has never been a fire in his or her community. [00:16:01] Speaker 05: is putting out fires an integral part of the fire chief's responsibilities, even though he has never put out a fire analogously to the CSA agents that hypothetically have never touched a bag. [00:16:17] Speaker 02: I agree, Your Honor. [00:16:19] Speaker 02: That is part of the job. [00:16:20] Speaker 02: But Saxon tells us to look at what the class of workers actually does, not what they are hypothetically engaged to do what they actually do. [00:16:28] Speaker 05: Well, then why is putting out fires an integral part of the fire chief's responsibility if he's never put out a fire? [00:16:34] Speaker 02: Because, I mean, I'm getting sort of far afield of my own hypotheticals here, Your Honor, but that is the nature of the job, is to be available. [00:16:44] Speaker 01: When needed. [00:16:45] Speaker 01: When needed. [00:16:46] Speaker 05: And so if somebody comes in with a 90-pound bag, let's say at the gate, and maybe that just never happens, but that's why the agent is at the gate to make sure that someone doesn't take on extra-large baggage, even if it never happens, right? [00:17:10] Speaker 02: I would agree, and that's why the frequency analysis matters again. [00:17:13] Speaker 02: 50% of their time, they're doing this. [00:17:16] Speaker 02: Then Saxon says that's a transportation worker. [00:17:19] Speaker 02: And the ramp agent in that case was a supervisor. [00:17:21] Speaker 02: I think the evidence was, at least two to three days of their five-day week, they were loading bags. [00:17:27] Speaker 02: That's not what the record evidence is here. [00:17:29] Speaker 02: And that's why the frequency analysis, which the district court didn't conduct, even though this was a clearly disputed issue, that's why I think this is air there. [00:17:37] Speaker 02: And it matters. [00:17:38] Speaker 02: It's really important to this case. [00:17:39] Speaker 02: Thank you for the questions, Your Honor. [00:17:41] Speaker 02: Thank you. [00:17:41] Speaker 04: Thank you, counsel. [00:17:51] Speaker 00: Good morning. [00:17:52] Speaker 00: I'm Shelby Woods, Council for Appellees, and may it please the Court. [00:17:56] Speaker 00: Three points demonstrate why the District Court correctly found that CSAs are transportation workers exempt from mandatory arbitration. [00:18:07] Speaker 00: First is the standard of review. [00:18:09] Speaker 00: Now, the District Court held a full evidentiary hearing. [00:18:11] Speaker 00: Appellants are unhappy with the findings made as a result of the evidence they chose to present. [00:18:18] Speaker 00: rather than presenting evidence on the actual work that either the ticketing and check-in CSAs perform or the gate CSAs perform. [00:18:27] Speaker 00: They tried to present evidence of expectations, of training, of system design, intention. [00:18:35] Speaker 03: Are you saying that evidence was irrelevant and should not have been received? [00:18:39] Speaker 00: No, Your Honor. [00:18:40] Speaker 00: What I'm saying is it is only relevant to the extent they can establish that those expectations, that supervision, [00:18:47] Speaker 00: that that design actually coincides with the actual work performed. [00:18:51] Speaker 00: That is the first step of the Saxon analysis. [00:18:54] Speaker 03: I thought they tried to put on evidence of actual frequency and it was either rejected or not considered in the opinion. [00:19:06] Speaker 03: Am I correct? [00:19:07] Speaker 00: No, Your Honor, two points there. [00:19:09] Speaker 00: They did not attempt to put on evidence of actual frequency, but tried to make the conclusion of frequency based on those expectations, based on those sort of more abstract arguments of what they claim the system was intended to, how it was intended to work if everything worked perfectly. [00:19:31] Speaker 03: You're telling me if I go to the record, there is no evidence whatsoever [00:19:36] Speaker 03: as to the frequency of the handling of bags by CSAs generally? [00:19:45] Speaker 00: There is evidence of how CSAs purportedly handle certainly luggage, cargo, and also passengers. [00:19:56] Speaker 00: There's actually an extensive examination on that. [00:19:59] Speaker 00: And the only part I think that is taken out of context by appellants [00:20:04] Speaker 00: that Judge Cruz did say was when appellants were trying to present evidence. [00:20:09] Speaker 00: But actually, right after, I believe, appellants had said, you can't look just at the job descriptions here. [00:20:16] Speaker 00: Yes, the jobs descriptions say that CSAs are expected to frequently lift cargo up to 70 pounds. [00:20:23] Speaker 00: You can't just look at that. [00:20:24] Speaker 00: That's looking at every scenario. [00:20:25] Speaker 00: You have to look at everything in context. [00:20:28] Speaker 03: So are you telling me there is evidence [00:20:31] Speaker 03: of the frequency generally of this class of CSAs at the carousel and at the gate? [00:20:40] Speaker 00: Yes, your honor. [00:20:41] Speaker 00: There is evidence of frequency where if the court wants to make a ruling just simply on the fact that someone physically lifting, physically manipulating, hauling, pulling, pushing, all of those things that actually result in conveying the cargo. [00:20:59] Speaker 00: to the next point in the stream of commerce, they can make a finding just simply on that and not actually consider whether these other instances of maintaining control, maybe through verbal instruction, through visual control, whether those would be independently sufficient to find that these are transportation workers, but even just giving credit to this argument that the finding of fact of frequency in Saxon [00:21:28] Speaker 00: that that actually creates some kind of implied test where courts are required to at least consider some type of quantifiable frequency, which I think is assistive, certainly, in determining whether we have transportation workers. [00:21:41] Speaker 03: Focusing on the actual activities of these three plaintiffs, was Mr. Ward correct in his characterization that when he was examining them, [00:21:56] Speaker 03: Is it suddenly the frequency with which they put bags on the carousel significantly diminished? [00:22:08] Speaker 03: No, Your Honor, because that frequency... So he did not properly characterize the answers on his examination. [00:22:17] Speaker 00: I do not believe that it would be accurate to say certainly that there was a contradiction as far as the frequency that would cause the court to legitimately believe that there was a credibility issue. [00:22:33] Speaker 03: My question is Mr. Ward said that upon his examination that their testimony indicated in actuality it was [00:22:46] Speaker 03: not very frequently, that they actually handled the bags physically. [00:22:51] Speaker 03: Is that incorrect what he said? [00:22:53] Speaker 00: That is incorrect, Your Honor, and thank you for restating that. [00:22:57] Speaker 00: I do understand what you're asking. [00:22:59] Speaker 00: He attempted to, you know, extensively cross-examine all three plaintiffs and try to create some inconsistencies, and that actually shows the limitations of [00:23:11] Speaker 00: a really specific, strict frequency analysis because these are roles that are just so intimately involved with transportation that it's so enmeshed that it becomes an exercise of really futility where you almost start distorting little aspects of the job and start to lose the big picture of we're dealing with workers who, if you imagine the ticketing the gate desk at [00:23:37] Speaker 00: a major international airport like Denver International Airport is just completely empty, transportation does not happen anymore. [00:23:45] Speaker 00: There aren't passengers getting through. [00:23:47] Speaker 00: There aren't passengers with their luggage getting through. [00:23:49] Speaker 05: To say that this is all something like... Say that again, because I didn't... I didn't really follow that. [00:23:57] Speaker 05: I mean, yeah, explain that. [00:24:01] Speaker 00: So certainly, your honor, this is all the big picture context for whether these are a class of workers that would be considered subject to section one's exemption such that they should not be tied up in the FAA if there were to be a dispute that, for instance, would cause all CSAs to just simply walk out of the job. [00:24:24] Speaker 00: If that happened, would that result in a direct impact to international [00:24:31] Speaker 00: or interstate transportation, and here it absolutely would. [00:24:35] Speaker 03: Wait a minute. [00:24:39] Speaker 03: You're confusing me, too. [00:24:41] Speaker 03: I thought what we look at is the actual evidence of the frequency with which CSAs physically handle baggage. [00:24:54] Speaker 03: Isn't that what we're looking at? [00:24:56] Speaker 00: We absolutely do, Your Honor. [00:24:57] Speaker 03: We're not worried about, well, if they get fired or they get [00:25:02] Speaker 00: I completely agree with you. [00:25:03] Speaker 00: Really just envisioning what the overall role of this class of workers is to the transportation system is just a cross check that you do when you're actually evaluating what the actual work is that's being performed. [00:25:18] Speaker 00: Because the whole part of the Saxon analysis is to determine whether that role, whether that class of workers has a direct and necessary link with international or interstate transportation. [00:25:31] Speaker 03: that it would appear from Saxon that if the supervisor had sell, the evidence was she had seldom handled baggage physically, that the outcome would have been different. [00:25:49] Speaker 00: Likely not, your honor, because it still would be such a direct link to the actual transport of that cargo. [00:26:01] Speaker 00: that really, whether she is supervising it and controlling it in that fashion or directly physically handling it herself, the distinction really doesn't serve a significant difference as far as determining whether someone is inactive. [00:26:15] Speaker 03: You're suggesting that Saxon says it ruled the way it did because of her supervisory role in the chain of events on the bags. [00:26:27] Speaker 03: And that's not my understanding what Saxon said. [00:26:30] Speaker 03: Saxon said she, in addition to her supervisory roles, she frequently touches and handles the bags. [00:26:40] Speaker 03: Isn't that what Saxon said? [00:26:42] Speaker 00: Saxon does say that, Your Honor. [00:26:44] Speaker 00: You're entirely right. [00:26:45] Speaker 03: The fact that she's a supervisor was irrelevant to the outcome in Saxon. [00:26:49] Speaker 00: I think that is correct, Your Honor, but I think it's also equally true that the fact that she's the supervisor is something that obviously the Supreme Court is comfortable with. [00:26:58] Speaker 00: It's not a problem that a role like a CSA can have some aspect of their actual work that isn't typically a part of transportation. [00:27:11] Speaker 00: Really here though, the frequency analysis that was explored with the district court [00:27:18] Speaker 00: just proved how difficult it is to actually divorce any non-transportation-related function of the CSA's roles with the transportation functions. [00:27:28] Speaker 04: And we do need to have a limiting principle in this case. [00:27:30] Speaker 04: And I'm quite fond of Saxon because I suspect I'm the only person in this room today that was actually a ramp agent working my way through law school. [00:27:43] Speaker 04: And all I did was sling bags into the back of a [00:27:46] Speaker 04: of an airplane, but that's all I did. [00:27:49] Speaker 04: And to me, Saxon and the supervisor that was watching me, he or she would frequently have to pick up the slack when we were behind schedule and the plane needed to leave. [00:28:05] Speaker 04: But upstairs in the terminal at the ticket agent, it seems the baggage handling is truly incidental to what they're [00:28:15] Speaker 04: primary function is, and obviously they need to get the customer tagged and the bag on the belt. [00:28:23] Speaker 04: But at least the frontier model is designed to minimize as much as possible the agent's participation in the process. [00:28:33] Speaker 04: The ultra low-cost carrier model is, you know, you pay for everything and the customer does it. [00:28:40] Speaker 04: And, you know, to the extent customers can't cope with that, [00:28:46] Speaker 04: But the vision of Frontier is that that would be a very small part of the CSA's job. [00:28:53] Speaker 04: So if we are talking about frequency, then how do you draw the line? [00:29:03] Speaker 04: And how do we draw the line here on this record? [00:29:06] Speaker 00: Great question, Your Honor. [00:29:08] Speaker 00: Many cases have drawn lines where the actual involvement is just too attenuated with the actual flow of commerce or the actual flow of either cargo or passengers, where it just doesn't make sense that it is going to be too expansive in broadening the scope of the Section 1 exemption. [00:29:27] Speaker 00: For instance, at even an airport, there is a likelihood that certainly individuals that are so attenuated [00:29:36] Speaker 00: that even maybe just a surveillance component. [00:29:39] Speaker 00: That could be certainly a situation where that worker is just, rather than being a direct link in the stream of commerce, they're actually above it. [00:29:50] Speaker 00: That they don't have a tangible or direct enough role where essentially their absence would affect transportation such that the exemption applies. [00:29:59] Speaker 00: That's one potential way. [00:30:00] Speaker 00: And any kind of regulatory sense of someone being involved [00:30:06] Speaker 00: In transportation, I think the question of how necessary that is, how much that is actually directly affecting whether transportation occurs, is going to be what's really significant as far as drawing the line in a workable way. [00:30:20] Speaker 04: We've talked about frequency, but at least one of the cases, I don't know if it was Singh or Fraga talked about whether the movement of cargo would be a central part of the job. [00:30:34] Speaker 04: I guess I call that a centrality [00:30:36] Speaker 04: And I'm not quite sure how that differs from frequency, but can we say that moving bags is an essential part of a CSA's job description, or is it something less? [00:30:53] Speaker 00: It is absolutely essential. [00:30:54] Speaker 00: We're an essential part of CSA's positions. [00:30:58] Speaker 00: We have testimony that it occurred in 100% of their shifts, 100% of their shifts. [00:31:06] Speaker 00: at both positions. [00:31:08] Speaker 00: And we also have testimony where certainly even the design, even what CSAs are trained to do, to work on that agent assist side where Ms. [00:31:18] Speaker 00: Joyner testified, she wears 50% of her time. [00:31:20] Speaker 00: They're trained to actually assist in actually helping the passenger fix their luggage and also lift it as well. [00:31:30] Speaker 00: They're also conveying the actual cargo using the conveyor belt system. [00:31:36] Speaker 00: discussion with Mr. Ward on whether that's actually the conveyor belt transporting. [00:31:42] Speaker 00: That would be similar to arguing that last mile drivers, that it's really the trucks delivering. [00:31:47] Speaker 00: We're talking about workers here, not equipment. [00:31:49] Speaker 03: Can I ask you... Oh, you go ahead, Judge. [00:31:52] Speaker 03: What does the evidence indicate with respect to these individuals in secondary, if there was any evidence about CSAs generally? [00:32:04] Speaker 03: And that is how the conveyor belt ran. [00:32:09] Speaker 03: Was it a continuous belt, or did they control the on-off switch? [00:32:15] Speaker 00: Great question, Your Honor. [00:32:16] Speaker 00: With respect to these plaintiffs specifically, they controlled the conveyor belt system by actually pushing a button after verifying that the cargo was set to the right location for that cargo to arrive at eventually. [00:32:29] Speaker 03: its final destination after working through the baggage system and asked us... Was there evidence about CSAs generally in activating the belt? [00:32:42] Speaker 00: I don't recall it specifically in activating the belt itself, but there was evidence certainly that the court relied on it reaching its decision that other CSAs performed their actual work the exact [00:32:54] Speaker 00: way that the plaintiffs testified that it was typical for everyone that would be a part of this class of workers. [00:33:00] Speaker 03: In the court making that finding, did it rely on the prototype type evidence or in the actuality evidence of other CSAs? [00:33:13] Speaker 03: Was that clear in my question? [00:33:16] Speaker 00: I believe so, Your Honor. [00:33:19] Speaker 00: that the court relied on what the testimony reflected. [00:33:22] Speaker 00: The actual work was that other CSAs performed and that that was corroborated by the fact that the system design encouraged or required every CSA to operate the conveyor belt system in the exact same way for it to function in actually effectuating transportation. [00:33:46] Speaker 05: Well, I just had a question about something that you had just said, because I did not see it in Judge Crew's order. [00:33:57] Speaker 05: So obviously, Menzies and Frontier argue about the trainer, that this is the way that the CSAs are trained, and you have the testimony in the declarations of Joyner, Dixon, and Hobley. [00:34:10] Speaker 05: What I never saw is something that you just said existed, and I probably overlooked it. [00:34:16] Speaker 05: But I never saw where Judge Cruz actually said, I, Judge Cruz, find, despite this discrepancy of evidence, that I believe that the way that Joyner, Dixon, and Hobley performed their jobs is representative of the way that other CSAs did their job in terms of the frequency that they hit the button to transport [00:34:45] Speaker 05: to the extent that they picked up bags. [00:34:48] Speaker 05: And I think you just said that he did make that finding, and I'm not quarreling with it. [00:34:55] Speaker 05: I just never saw that. [00:34:57] Speaker 05: And so that was a little bit of a difficulty for me because we're not fact-finders. [00:35:04] Speaker 00: Your Honor, in detailing with specifics what the role entailed and how that is enmeshed in transportation, [00:35:13] Speaker 00: There's just no way that you can divorce the actual specific role of these plaintiffs with what typical work would look like. [00:35:21] Speaker 03: As I understand, the question is, what did the judge say? [00:35:25] Speaker 00: Yes. [00:35:26] Speaker 03: Did he say, these individuals are reflective of what happens actually generally? [00:35:33] Speaker 03: Did the judge so rule? [00:35:37] Speaker 00: I don't recall that express statement, Your Honor, but what I do recall is that there was an absence of any evidence to the contrary, for one, as well as... I mean, yeah, I mean, I have the same question as Judge Murphy, but I didn't mean to talk over you, by the way. [00:35:55] Speaker 05: But, you know, but... Mrs. Frontier presented evidence of the traitor that says exactly the opposite of what Joyner, Dixon, and Hobbie say. [00:36:07] Speaker 05: And let's say, I mean, this is not summary judgment. [00:36:13] Speaker 05: So, and we're talking about whether or not the class of workers would constitute transportation workers. [00:36:23] Speaker 05: And so I just wonder, technically, absent a specific finding from Judge Cruz, that the way that these three, that he credited their testimony or declarations that the way that they were [00:36:35] Speaker 05: Performing their jobs was representative of the class of workers generally I just don't know how that we can say other than Joyner Dixon and hobbly were transportation workers I don't know how we can say that about the transportation workers as a club. [00:36:48] Speaker 00: I mean about the CSA's as a class You can you can see your honor in the fact that transportation does occur and by how? [00:36:58] Speaker 00: Entwined how intimately involved this particular position has to be for that to happen [00:37:03] Speaker 00: And I would urge the court to be reluctant on requiring at that stage in the proceedings at an evidentiary hearing, evidence outside of the plaintiffs that would corroborate what the plaintiffs testify the actual work is that they're performing, particularly when it's so logically verifiable with the fact that transportation is occurring here. [00:37:23] Speaker 03: Do you have a case that doesn't say anything about the frequency [00:37:33] Speaker 03: Well, the frequency aside, it says specifically, if there is enmeshment in the transportation process, you are a transportation worker. [00:37:46] Speaker 03: Do you have a case that says that? [00:37:48] Speaker 00: Yes, Your Honor. [00:37:49] Speaker 00: I think Lopez from the Ninth Circuit is helpful on that front, because that was actually, I believe, a Benzies employee, if I'm not mistaken. [00:37:59] Speaker 00: It was someone who fueled jet [00:38:03] Speaker 00: airplanes for the transportation of cargo. [00:38:06] Speaker 00: So it wasn't someone who ever directly handled the goods themselves or did anything as far as moving the goods in even a really short aspect in the stream of commerce. [00:38:17] Speaker 00: They just were so enmeshed with fueling the airplanes that did perform the transportation that they really couldn't be divorced from having that direct and necessary link that Saxon requires. [00:38:35] Speaker 04: All right. [00:38:36] Speaker 04: I think your time's expired. [00:38:37] Speaker 00: Thank you. [00:38:37] Speaker 04: Five minutes ago. [00:38:38] Speaker 04: We'll give Mr. Ward three minutes. [00:38:45] Speaker 02: Very grateful for the extra time, Your Honor. [00:38:48] Speaker 02: I want to pick up on Judge Backrock's question about what did Judge Cruz say. [00:38:52] Speaker 02: This is what he said at the hearing. [00:38:55] Speaker 02: Because we started to try to present evidence that was contradictory to what the plaintiffs were saying. [00:39:00] Speaker 02: And he says, hold on. [00:39:01] Speaker 02: The issue before the court is what [00:39:03] Speaker 02: these plaintiffs actually do with their work. [00:39:06] Speaker 02: That's wrong. [00:39:07] Speaker 02: That's not Saxon. [00:39:09] Speaker 02: It doesn't matter what the plaintiffs do. [00:39:11] Speaker 02: It's what the class of workers does. [00:39:12] Speaker 02: He then went on to say, if other employees were doing it differently, I don't find that persuasive of anything that I need to decide. [00:39:20] Speaker 02: That's wrong. [00:39:22] Speaker 02: And then in his order, this is what he wrote. [00:39:25] Speaker 02: Interstate transportation of goods is enmeshed in the work performed by these plaintiffs. [00:39:31] Speaker 02: and it is difficult to divorce them. [00:39:33] Speaker 02: The court finds Ms. [00:39:35] Speaker 02: Joyner, Ms. [00:39:36] Speaker 02: Dixon, and Ms. [00:39:37] Speaker 02: Hobley are transportation workers. [00:39:39] Speaker 02: That is a wrong finding as a matter of law because what he is not saying is the class of workers are transportation workers. [00:39:48] Speaker 02: He never said that. [00:39:49] Speaker 02: He evaluated everything in this case [00:39:52] Speaker 02: solely through the lens of the plaintiffs. [00:39:54] Speaker 02: And that is simply a misapplication of the Saxon test. [00:39:58] Speaker 04: Would that be harmless error on this record, though? [00:40:01] Speaker 02: Not when we offered the evidence that tried to show it's otherwise there. [00:40:05] Speaker 02: I mean, at minimum, this should be remanded for the judge to evaluate the evidence under the proper legal standard. [00:40:12] Speaker 02: That's the starting point. [00:40:14] Speaker 02: My point is, I think this record is sufficient [00:40:17] Speaker 02: to not say this is harmless error. [00:40:19] Speaker 02: In fact, Judge Cruz got it wrong. [00:40:20] Speaker 02: And you asked where this is in the record. [00:40:22] Speaker 02: It comes in three places. [00:40:23] Speaker 02: One, there's objective evidence. [00:40:24] Speaker 02: We put videos in there. [00:40:25] Speaker 02: This is what they do. [00:40:26] Speaker 02: 20 minutes of video footage. [00:40:28] Speaker 03: Videos of actual workers. [00:40:29] Speaker 02: Videos of actual workers working the backdrop. [00:40:32] Speaker 02: There's 20 minutes of video. [00:40:33] Speaker 03: That's not helpful. [00:40:34] Speaker 03: That's like a snapshot. [00:40:35] Speaker 03: That's like a poll. [00:40:37] Speaker 02: It's 20 minutes of footage, and you know, it's useful for the 20 minutes, I would say, Your Honor. [00:40:42] Speaker 02: Like, does that show what they do? [00:40:44] Speaker 02: You know, Ms. [00:40:45] Speaker 02: Shelby referred to the plaintiffs that 100% of the shifts, okay, that may be accurate, but if you spend three minutes of every shift doing it, that's not frequent. [00:40:53] Speaker 02: That is hyperbolic exaggeration, and that's what the plaintiffs did. [00:40:56] Speaker 03: And to your question... We can look at the record. [00:40:58] Speaker 03: Do you say there are no cases that rule that embezzlement is enough? [00:41:06] Speaker 02: That is a complete invention by the district court. [00:41:09] Speaker 03: So you're saying there are no cases other than the district court ruling here, not just saying enmeshment makes you a transportation. [00:41:19] Speaker 02: There is no case that says enmeshment. [00:41:22] Speaker 02: There is no case that says gatekeeping. [00:41:24] Speaker 03: There is no case... You're saying the integral? [00:41:27] Speaker 02: Saxon says directly involved, okay? [00:41:30] Speaker 02: And this is... Ms. [00:41:32] Speaker 03: Woods made the point that she said... Well, Saxon says a role in the flow of goods. [00:41:38] Speaker 02: A direct and necessary role. [00:41:40] Speaker 02: Direct, necessary, as measured by actual physical involvement. [00:41:45] Speaker 02: These are words from Saxon. [00:41:47] Speaker 02: I think the word physical from Saxon is critical. [00:41:50] Speaker 02: It talks about this idea that [00:41:52] Speaker 02: You've got to be transporting the goods. [00:41:54] Speaker 05: Other than the plaintiff in Lopez. [00:42:00] Speaker 05: Correct. [00:42:00] Speaker 05: Who didn't transport anything. [00:42:02] Speaker 02: And that's my case, Your Honor. [00:42:03] Speaker 02: I argued it at the Ninth Circuit. [00:42:04] Speaker 02: I'll be candid. [00:42:05] Speaker 02: I think the Ninth Circuit got it wrong. [00:42:07] Speaker 02: But even they didn't say enmeshment. [00:42:08] Speaker 02: They invented a different test. [00:42:10] Speaker 05: Well, yeah. [00:42:10] Speaker 05: I mean, yeah, they didn't use the word enmeshment. [00:42:13] Speaker 05: But the Ninth Circuit said also the opposite of what you just said. [00:42:20] Speaker 05: And that is, [00:42:21] Speaker 05: that the Ninth Circuit, unanimous panel, found that the person that fuels the plane, albeit doesn't transport anything, is a transportation worker because he or she is directly involved [00:42:40] Speaker 05: in the machinery, like the conveyor belt, that transports goods across state lines. [00:42:48] Speaker 02: And even that, I can still distinguish Lopez, Your Honor. [00:42:51] Speaker 02: I disagree with the Ninth Circuit. [00:42:52] Speaker 02: The test they created was a vital component. [00:42:55] Speaker 02: I don't know what that means, especially when you read it against Circuit City, because that is massively expansive when Circuit City says this is narrow. [00:43:03] Speaker 02: But at minimum, the fuelers in Lopez, that's all they did. [00:43:07] Speaker 02: They fueled aircraft 100% of their time, 100% of their shifts. [00:43:12] Speaker 02: So even if you compare this case to that case, frequency is satisfied there. [00:43:17] Speaker 02: It is not satisfied here. [00:43:20] Speaker 02: I very appreciate the extra time, Ron. [00:43:22] Speaker 02: Thank you very much. [00:43:22] Speaker 04: Thank you, counsel. [00:43:23] Speaker 04: Appreciate the arguments. [00:43:24] Speaker 04: That was very helpful. [00:43:25] Speaker 04: You both excused. [00:43:26] Speaker 04: The case shall be submitted.