Fraga v. Premium Retail Services, Inc.

United States Court of Appeals
For the First Circuit

No. 22-1101

SARA FRAGA, individually and on behalf
of all persons similarly situated,

Plaintiff, Appellee,

v.

PREMIUM RETAIL SERVICES, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Barron, Chief Judge,
Howard and Kayatta, Circuit Judges.

Jonathan A. Keselenko, with whom James S. Fullmer and Foley
Hoag LLP were on brief, for appellant.
Joshua P. Davis, with whom Shanon J. Carson, Phyllis Maza
Parker, Camille F. Rodriguez, Alexandra K. Piazza, Berger Montague
PC, Jason M. Leviton, and Block & Leviton LLP were on brief, for
appellee.

March 3, 2023
 KAYATTA, Circuit Judge. Plaintiff Sara Fraga brought

this putative class action alleging that her former employer,

Premium Retail Services, Inc., failed to pay her and other

employees for time spent working off-site. Premium, in turn,

sought to compel arbitration pursuant to an arbitration agreement

that Fraga signed as a condition of her employment. The district

court denied Premium's request for arbitration on the basis that

Fraga plausibly alleged facts that placed her within the Federal

Arbitration Act's section 1 exemption for workers engaged in

interstate commerce. Premium then filed this interlocutory

appeal. Because the district court has yet to make the findings

of fact upon which the question of arbitrability likely turns, we

must remand for further factfinding with the benefit of the

guidance provided in this opinion.

I.

We begin with a summary of the record as it now stands.

Incorporated and headquartered in Missouri, Premium provides

retail merchandising support to brands at their stores across North

America. Its services include assisting retail stores with

stocking inventory, creating merchandise displays, and keeping

pricing and signage up to date. Premium employs "merchandisers"

in all fifty states to perform these functions.

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 Fraga worked as a merchandiser for Premium in

Massachusetts from December 2020 to early 2021.1 Her zone of store

locations encompassed stores in Massachusetts, Connecticut, New

Jersey, and New York. As a merchandiser, Fraga's duties included

traveling to her assigned stores, auditing and stocking product,

building product displays, and updating product pricing and

signage. Most relevant to this appeal, Premium's job listings for

merchandisers stated that merchandisers were also expected to

"[r]eceive marketing and promotional materials at your home and

bring them to the store." These materials -- which the parties

call "point-of-purchase (POP) materials" -- included items like

coupons and signage advertising retail products.

Consistent with its job listings, Premium would, at

times, ship POP materials intended for specific stores to the homes

of its merchandisers, who would then drive the materials to the

stores for display. The parties dispute how frequently this

occurred. Fraga submitted a declaration stating that "Premium

sent these POP materials directly to my home several times per

week" and that "[o]n a typical day, I would receive anywhere from

a large envelope to more than a dozen boxes of POP materials."

She also submitted similar declarations from four other Premium

1 Fraga's complaint alleges that she worked for Premium until
January 2021, but declarations she submitted to the district court
state that she worked there until March 2021.

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merchandisers stating that Premium sent POP materials to their

homes "on an almost-daily basis," "several times per week,

sometimes daily," "about three times per week," or "two to three

times per week."

Fraga describes her typical workday as beginning with

about thirty minutes of reviewing assignments and organizing her

route. She would then spend thirty minutes preparing POP materials

for the day's assignments. This "involved opening each box of POP

materials, searching and sorting through the POP materials to find

those associated with the day's assignments, and organizing and

packing the POP materials into [her] vehicle." After loading the

POP materials, Fraga would drive to her assigned stores to perform

retail work, "which typically ranged from smaller tasks like

building product displays or updating pricing and signage to

substantial projects like performing a full 'reset' of [her]

assigned brands." Part of her daily duties was "to transport,

deliver, and install various POP materials at each of [her]

assigned stores." Depending on her assignments, she would spend

anywhere from thirty minutes to eight hours in each store. She

typically visited four stores in a day, but occasionally visited

as many as fifteen. Her daily total travel time between stores

typically ranged from ninety minutes to three hours, with an

average of about two hours.

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 Premium, for its part, submitted a declaration from an

executive stating that POP materials "are usually sent directly to

retail stores, rather than to merchandisers at home. Premium will

on rare occasions send POP materials to a merchandiser's home but

this is the exception, not the rule."2

According to Fraga, Premium failed to pay her and other

merchandisers for their time spent traveling to and between

worksites and for their work performed prior to arriving at a

worksite, such as mapping out assignments and sorting and preparing

display materials. She also alleges that Premium failed to pay

overtime even though she and other merchandisers regularly worked

more than forty hours per week. (Fraga claims to have typically

worked sixty-five to eighty-five hours per week.) She seeks relief

for herself and similarly situated Premium merchandisers under the

Fair Labor Standards Act (for a national class) and Massachusetts

law (for a Massachusetts class).

Premium contends that Fraga's lawsuit never gets off the

ground because of an arbitration agreement she signed when she

began her employment with Premium. The agreement stated:

2 Premium also points us to a California superior court
decision noting Premium's contention in that case that only
8.3 percent of the plaintiff's work assignments included a
shipment of promotional materials. See Ruling on Petition to
Compel Arbitration, Raney v. Premium Retail Servs. Inc.,
No. CVRI2203007 (Cal. Super. Ct. Dec. 12, 2022) (adopting in full
the court's December 6, 2022, tentative ruling). The record in
this case contains no similar contentions with such specificity.

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 The Parties mutually agree and consent to the
resolution by arbitration of all claims or
controversies ("claims"), past, present or
future, whether or not arising out of
Employee's employment (or its termination),
that the Company may have against Employee, or
that Employee may have against . . . the
Company . . . . The Parties agree that
neither of them shall initiate or prosecute
any lawsuit or court action in any way related
to any claim covered by this Agreement.

Claims that must be arbitrated include, but
are not limited to, claims for wages, overtime
pay, bonuses or other compensation; . . .
claims regarding hours worked or not worked,
including overtime; . . . and claims for
violation of any federal, state, or other
governmental law, statute, regulation, or
ordinance (except as provided below).

It also contained a class action waiver stating:

To the maximum extent permitted by law, the
Parties agree that all claims covered by this
Agreement shall be brought in a Party's
individual capacity only, and not as a
plaintiff or class member in any purported
class, collective or representative action or
proceeding on behalf of persons other than the
individual Party. . . . If this class waiver
shall be determined to be unenforceable, then
any class, collective or representative action
or proceeding shall be brought only in court,
and not in arbitration. The Parties do not
agree to arbitration on a class, collective or
representative basis under any circumstances.3

3 The agreement also included a "severability" provision
stating that "in the event that the class waiver is deemed invalid
or unenforceable, any claim seeking relief on behalf of a class
must be brought in a court of proper jurisdiction and not in
arbitration."

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 Invoking this agreement, Premium filed a motion styled

"Motion to Compel Arbitration and Dismiss Complaint," requesting

"that the Court dismiss Plaintiff's claims and order her to submit

her claims to arbitration on an individual basis." The only ground

that Premium advanced for either remedy was the arbitration

agreement.

The district court treated Premium's filing as two

separate motions: a motion to dismiss under Federal Rule of Civil

Procedure 12, and a motion to compel arbitration under the Federal

Arbitration Act (FAA). It issued an order on January 31, 2022,

denying the motion to dismiss because, drawing all reasonable

inferences in favor of Fraga, it found that Fraga plausibly alleged

that she fell inside the FAA's section 1 exemption for

transportation workers. And if she fit within that exemption, her

contract would be beyond the scope of the FAA and would be governed

by Massachusetts law, which prohibited class action waivers. And

if the class action waiver were unenforceable, the agreement would

require any class action to be brought in court, not in

arbitration. In the same order, the district court purported not

to rule on the motion to compel arbitration, but effectively denied

it (at least without prejudice) by ordering Premium to answer the

complaint and negotiate a schedule for resolving all issues in the

case and setting a trial date.

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 Premium appeals from the district court's order, arguing

that Fraga does not fall within the FAA's exemption. Premium on

appeal takes no issue with the district court's application of

Massachusetts law or construction of the agreement's terms.

II.

We first consider a potential jurisdictional hurdle

created by the odd procedural posture of this interlocutory appeal.

The putative basis for our jurisdiction is 9 U.S.C. § 16(a), which

allows for interlocutory appeals from denials of motions to compel

arbitration. It does not allow for interlocutory appeals from

denials of motions to dismiss. Because Premium styled its motion

as a "Motion to Compel Arbitration and Dismiss Complaint," and

because the order appealed from purportedly denies only the motion

to dismiss while reserving a ruling on the motion to compel

arbitration, one could reasonably think that we have before us

merely an appeal from a denial of a motion to dismiss, over which

we would lack interlocutory jurisdiction.

This is not the first time this issue has come up.

Several times, we have treated a "request to dismiss . . . on the

ground that the claim is subject to arbitration as a request for

an order compelling arbitration." IOM Corp. v. Brown Forman Corp.,

627 F.3d 440, 449 n.10 (1st Cir. 2010) (citing Fit Tech, Inc. v.

Bally Total Fitness Holding Corp., 374 F.3d 1, 6 (1st Cir. 2004));

see Soto v. State Indus. Prods., Inc., 642 F.3d 67, 70 n.1 (1st

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Cir. 2011) ("[W]e may treat a motion to dismiss based on an

arbitration clause as a request to compel arbitration when the

facts of the case make it clear that the party intended to invoke

arbitration."); Sourcing Unlimited, Inc. v. Asimco Int'l, Inc.,

526 F.3d 38, 46 (1st Cir. 2008) (reasoning that refusing

jurisdiction because defendants sought dismissal rather than to

compel arbitration would "elevate[] a label over substance").

We do the same here. The only basis for Premium's

request for dismissal was the arbitration clause in Fraga's

employment agreement. In substance, Premium was asking the court

to issue an order precluding further litigation of this case. And

the district court denied that request, albeit leaving open the

possibility of revisiting the request on a fuller record.

Therefore, we retain jurisdiction over this interlocutory appeal

under 9 U.S.C. § 16(a). See Fit Tech, 374 F.3d at 6 ("Since no

one has been prejudicially misled by [defendant's] request for an

over-favorable remedy of dismissal, its request for dismissal in

favor of the accountant remedy can be treated as encompassing the

lesser alternative remedy of a stay and reference.").4

4 After this appeal was filed, the district court issued an
order denying Premium's motion to compel arbitration without
prejudice. Whether the court had jurisdiction to enter such a
ruling while the arbitration issue was pending on appeal we need
not decide. We refer to the order only to note that it confirms
our understanding of what the district court was trying to do.

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 That leaves one additional threshold issue posed by the

eccentric procedural history just described: What exactly is our

standard of review? As to any legal questions, our review is de

novo. Cullinane v. Uber Techs., Inc., 893 F.3d 53, 60 (1st Cir.

2018). As to factual issues, normally we would accept the district

court's findings of fact subject only to clear error review.

Rivera-Colón v. AT&T Mobility P.R., Inc., 913 F.3d 200, 206 n.6

(1st Cir. 2019). But here we have no findings of fact. And, as

we will explain, our analysis of the law indicates that the

ultimate resolution of the motion to compel arbitration turns (as

the district court presumed) on the resolution of some factual

disputes. We therefore accept only those facts that are

effectively undisputed, and otherwise identify those factual

disputes that need be resolved, much as if we were ruling on a

grant of summary judgment.

III.

Enacted in 1925, the FAA declares that written

arbitration agreements "shall be valid, irrevocable, and

enforceable." 9 U.S.C. § 2. Its reach extends to contracts

"evidencing a transaction involving commerce," id., a phrase that

the Supreme Court has interpreted as effectuating "an intent to

exercise Congress' commerce power to the full." Allied-Bruce

Terminix Cos. v. Dobson, 513 U.S. 265, 277 (1995).

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 The FAA also carves out a specific type of contract from

its grasp. Section 1 excludes from the FAA's umbrella "contracts

of employment of seamen, railroad employees, or any other class of

workers engaged in foreign or interstate commerce." 9 U.S.C. § 1.

The phrase "engaged in foreign or interstate commerce" in

section 1, unlike the phrase "involving commerce" in section 2,

"does not invoke the full extent of Congress's commerce power but,

rather, has 'a more limited reach.'" Immediato v. Postmates, Inc.,

54 F.4th 67, 74 (1st Cir. 2022) (quoting Circuit City Stores, Inc.

v. Adams, 532 U.S. 105, 115 (2001)). In Circuit City, the Supreme

Court rejected the notion that the exemption applies to all

employment contracts, stating that the exemption instead must "be

afforded a narrow construction," i.e., that it applies only to

"contracts of employment of transportation workers." 532 U.S. at

118–19.

Fraga contends that her arbitration agreement is such a

contract and that she is a member of a "class of workers engaged

in . . . interstate commerce." Evaluating this contention calls

for at least two undertakings: "We begin by defining the relevant

'class of workers' to which [the worker] belongs. Then, we

determine whether that class of workers is 'engaged in foreign or

interstate commerce.'" Sw. Airlines Co. v. Saxon, 142 S. Ct. 1783,

1788 (2022). We pursue each undertaking in turn.

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 A.

Decided after the district court issued its order, Saxon

provides new guidance on how to define the relevant class of

workers. The plaintiff, Saxon, a ramp supervisor employed by

Southwest Airlines, argued most broadly that she belonged to a

class of all airline employees. Id. at 1788. The Supreme Court

rejected this "industrywide approach" to defining the relevant

class of workers. Id.

In so doing, the Court focused on the FAA's use of the

word "workers," which "directs the interpreter's attention to 'the

performance of work.'" Id. (quoting New Prime Inc. v. Oliveira,

139 S. Ct. 532, 541 (2019)). "Further, the word 'engaged' --

meaning '[o]ccupied,' 'employed,' or '[i]nvolved' -- similarly

emphasizes the actual work that the members of the class, as a

whole, typically carry out." Id. (internal citations omitted).

Based on this textual analysis, the Supreme Court held that a

worker is "a member of a 'class of workers' based on what [the

worker] does at [the company], not what [the company] does

generally." Id.

Having rejected Saxon's broad, industrywide approach,

the Supreme Court turned its attention to the work that she

actually performed. Id. at 1788–89. Southwest's ramp supervisors

would "train and supervise teams of ramp agents." Id. at 1787.

Ramp agents, in turn, would "physically load and unload baggage,

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airmail, and freight." Id. "Frequently," however, "ramp

supervisors [would] step in to load and unload cargo alongside

ramp agents." Id. Based on the actual work that Saxon and other

ramp supervisors performed, the Supreme Court found that she

"belong[ed] to a class of workers who physically load and unload

cargo on and off airplanes on a frequent basis." Id. at 1789.

A majority of a split Second Circuit panel has read

Saxon's rejection of the industrywide approach to mean only that

working in a transportation industry (like air transportation) is

not sufficient to satisfy the section 1 exemption. Bissonnette v.

LePage Bakeries Park St., LLC, 49 F.4th 655, 660–61 (2d Cir. 2022).

The Bissonnette majority then reasoned that working in such an

industry is nonetheless necessary for satisfying the exemption.

Id.; see id. at 661 ("[W]e conclude that an individual works in a

transportation industry if the industry in which the individual

works pegs its charges chiefly to the movement of goods or

passengers, and the industry's predominant source of commercial

revenue is generated by that movement."). Premium urges us to

follow the Bissonnette majority. For four reasons, we decline to

do so.

First, our own circuit precedent points in the other

direction. In Waithaka v. Amazon.com, Inc., 966 F.3d 10 (1st Cir.

2020), we held that so-called "last-mile" drivers who worked for

Amazon.com, an online retailer (i.e., not a transportation

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company), were transportation workers covered by the section 1

exemption. Id. at 13, 26. In so holding, we made clear that "we

do not hold that a class of workers must be employed by an

interstate transportation business . . . to fall within

the Section 1 exemption." Id. at 23.

Second, we recognize that Saxon's holding does not

strictly foreclose the possibility that being employed in the

transportation industry may be a necessary threshold criterion for

qualifying as a transportation worker. That being said, Saxon's

repeated and emphasized command to focus on what the workers

themselves actually do strongly suggests that workers who do

transportation work are transportation workers. See 142 S. Ct. at

1788 ("Saxon is therefore a member of a 'class of workers' based

on what she does at Southwest, not what Southwest does

generally."). Nor is this focus on the workers rather than the

employer's industry unique to Saxon, or for that matter even to

the Court. See Circuit City, 532 U.S. at 118 (observing that

Congress's "demonstrated concern with transportation workers and

their necessary role in the free flow of goods" explains Congress's

decision "to ensure that workers in general would be covered by

the provisions of the FAA, while reserving for itself more specific

legislation for those engaged in transportation").

Third, focusing on the employer's business rather than

the workers' work would lead to odd results even if (as Bissonette

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holds) that focus is limited to a threshold requirement for

satisfying the section 1 exemption. Imagine, for example, a paper

company that built a rail link from its mill in New Hampshire to

a pulp source in Maine. One would think that the individuals who

operated a train on that railroad would qualify as "railroad

employees" under section 1. Yet Bissonette's reading would

exclude them from the exemption merely because a paper company

owned the railroad. And if Bissonette's reading does not work for

"railroad employees," then we do not see how it can work for "any

other class of workers" either.

Last, even the Bissonette majority seems unwilling to

fully accept the ramifications of its reading, purporting to leave

undecided the status of workers who transport goods for major

retailers. 49 F.4th at 663 (citing Waithaka as an example).

For all of these reasons, we adhere to the view that the

class of workers to which a worker belongs for purposes of applying

the section 1 exemption is "based on what [the worker] does at

[the company], not what [the company] does generally." Saxon, 142

S. Ct. at 1788.5

5 This is not to reject the possibility that the nature of
the employer's business will inform our assessment whether the
work actually performed constitutes engagement in interstate
commerce. See Waithaka, 966 F.3d at 22–23. For example, the
nature of the business may inform, as it does here, whether
intrastate transportation is part of an integrated interstate
journey. Id.

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 Trying a different approach, Premium argues that Fraga

does not fall within the section 1 exemption because "there is no

special arbitration regime for Merchandisers that was in place at

the time of the enactment of the FAA." Premium refers us to

language in Circuit City stating that "it is a permissible

inference" that Congress excluded seamen and railroad employees

from the FAA because specific dispute resolution procedures for

these categories of employees already existed under federal law.

Circuit City, 532 U.S. at 120–21. From this language, Premium

draws the further inference that the section 1 exemption applies

only to workers for whom Congress has created alternative dispute

resolution procedures.

Circuit City itself belies any notion that the section 1

exemption is so limited. Circuit City recognized that, through

the residual phrase "any other class of workers engaged in foreign

or interstate commerce," Congress "reserv[ed] for itself more

specific legislation for those engaged in transportation" -- even

if such specific legislation did not exist at the time. Id. at

121. Said differently, Congress left the door open to provide

specific dispute resolution procedures for any type of

transportation workers, and in fact did so shortly thereafter by

amending the Railway Labor Act to include air carriers and their

employees. Id. So workers do not fall outside the section 1

exemption merely because Congress has not yet designed a specific

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dispute resolution mechanism for those workers. Indeed, in

Waithaka we held that last-mile Amazon delivery drivers were

covered, even though there existed no legislation providing a

specific dispute resolution procedure for such workers. 966 F.3d

at 13, 26. To hold otherwise would be to render the residual

phrase largely a null set when the FAA was enacted.

That all leaves our focus where Saxon and the text of

section 1 suggest it should be: on the work in which Fraga and

other merchandisers were actually engaged. It is undisputed that,

at times: Premium committed to get promotional materials to

retailers in other states; shipped the materials most of the way

there; and left it to merchandisers to sort and deliver the

materials the remainder of the trip. So at least some work

performed by Premium merchandisers involved sorting, loading, and

transporting goods. But this does not end our inquiry. For

purposes of applying the section 1 exemption, we do not define the

class of workers by pointing to work that is only occasionally

performed. See Capriole v. Uber Techs., Inc., 7 F.4th 854, 865

(9th Cir. 2021) ("[S]omeone . . . does not qualify for the

exemption just because she occasionally performs that kind of

work." (quoting Wallace v. Grubhub Holdings, Inc., 970 F.3d 798,

800 (7th Cir. 2020))). Whether Premium merchandisers belonged to

a class of workers who sort, load, and transport goods therefore

turns on how often they performed that work.

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 Before the Supreme Court decided Saxon, one might have

argued (as Premium does here) that the transportation of goods

must be a "central part of the class members' job description" to

satisfy the section 1 exemption. Capriole, 7 F.4th at 865 (quoting

Wallace, 970 F.3d at 801). In Cunningham v. Lyft, Inc., 17 F.4th

244 (1st Cir. 2021), we drew a distinction between workers

"primarily devoted" to an activity and those only "infrequently"

so engaged, id. at 252–53, leaving unanswered the classification

of those who frequently, but not primarily, engage in that work.

Saxon has since made clear that the worker belongs to a class of

transportation workers if the worker performs that work

"frequently." 142 S. Ct. at 1788–89, 1793.

What does "frequently" mean in this context? Saxon

claimed, and Southwest disputed, that she spent "most of her days

loading and unloading cargo." Brief of Respondent at 28, Saxon,

142 S. Ct. 1783 (No. 21-309). Rather than resolving this factual

dispute in full, the Supreme Court observed that Southwest did not

"meaningfully contest[] that ramp supervisors like Saxon

frequently load and unload cargo," citing the lower court's

observation that Southwest did not controvert the claim that Saxon

and other ramp supervisors "'frequently fill in as ramp agents'

for up to three shifts per week." 142 S. Ct. at 1788 (emphasis

added) (quoting Saxon v. Sw. Airlines Co., 993 F.3d 492, 494 (7th

Cir. 2021)).

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 It therefore appears that in determining that the ramp

supervisors qualified as transportation workers, the Court found

it unnecessary to determine whether filling in to load and unload

luggage was their primary or central duty, or even whether they

spent the majority of their time doing that work. Cf. Walling v.

Jacksonville Paper Co., 317 U.S. 564, 572 (1943) (holding that an

employee is covered by the Fair Labor Standards Act "[i]f a

substantial part of [that] employee's activities related to goods

[that] move[d] in the channels of interstate commerce" (emphasis

added)). Certainly, the sorting, loading, and transportation of

POP materials that Fraga says she performed for two or more hours

most every day would seem to be work that was performed frequently

by any measure. If this description is accurate, any fair observer

of Fraga's workweek would include transportation of goods in

describing Fraga's substantial job duties. On the other hand, if

Premium is correct that merchandisers delivered materials to the

retailers only on "rare occasions," then the requisite frequency

would likely be absent. Beyond that, we decline to venture any

further refinement of the frequency requirement in the abstract,

without the benefit of factual findings that would provide a

context for any such refinement.6

6 We have no need to consider here how to decide a case in
which a task might be performed rarely, yet its performance is the
central purpose of the job (such as firefighters putting out actual
fires).

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 All of this is another way to say that the district

court's ultimate conclusion was largely correct: Further

factfinding is necessary to determine whether Fraga belonged to a

class of transportation workers.

To summarize, if the district court finds on remand that

Premium merchandisers did not frequently deliver POP materials to

retailers, Fraga's FAA exemption argument fails. On the other

hand, if the district court finds that sorting, loading, and then

transporting POP materials to retailers were frequently performed

job duties, the court will then need to decide whether the

merchandisers were "engaged in . . . interstate commerce" within

the meaning of section 1 when they performed those duties. We

turn next to explaining how to answer that latter question.

B.

To be "engaged in" interstate commerce, a class of

workers "must at least play a direct and 'necessary role in the

free flow of goods' across borders." Saxon, 142 S. Ct. at 1790

(quoting Circuit City, 532 U.S. at 121). That is, the class of

workers "must be actively 'engaged in transportation' of those

goods across borders via the channels of foreign or interstate

commerce." Id. (quoting Circuit City, 532 U.S. at 121).

In Waithaka, we distilled three categories of workers

who could potentially be "engaged in" interstate commerce under

section 1: (1) "workers who themselves carried goods across state

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lines"; (2) workers "who transported goods or passengers that were

moving interstate," "even if the worker's role in transporting the

goods occurred entirely within a single state"; and (3) workers

"who were not involved in transport themselves but were in

positions 'so closely related' to interstate transportation 'as to

be practically a part of it.'" 966 F.3d at 20 (quoting Shanks v.

Del., Lackawanna, & W. R.R. Co., 239 U.S. 556, 558 (1916)).7

To the extent that Premium's merchandisers were engaged

in interstate transportation while delivering POP materials, the

record as it now stands supports a finding that the merchandisers'

sorting and loading of those materials were practically parts of

that transportation. As to whether the merchandisers were indeed

engaged in interstate transportation, there is evidence that at

least some merchandisers (including Fraga) actually drove goods

across state lines. How many merchandisers did this and how

frequently it occurred is unclear from the record. Separately,

7Although in Waithaka we reserved judgment on whether
workers in the third category can fall within the section 1
exemption, 966 F.3d at 20 & n.9, the Supreme Court in Saxon later
clarified that they can. Saxon held that airline cargo supervisors
-- who loaded and unloaded cargo onto and off of airplanes but did
not themselves transport the cargo -- fell within the exemption
because they were, "as a practical matter, part of the interstate
transportation of goods." 142 S. Ct. at 1789; see id. ("We have
said that it is 'too plain to require discussion that the loading
or unloading of an interstate shipment by the employees of a
carrier is so closely related to interstate transportation as to
be practically a part of it.'" (quoting Balt. & Ohio Sw. R.R. Co.
v. Burtch, 263 U.S. 540, 544 (1924))).

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there is Fraga's claim that even the intrastate trips by

merchandisers were parts of interstate journeys. To determine

whether that claim has merit, we look to our case law delineating

when a class of workers transporting goods or people intrastate is

engaged in interstate commerce.

We begin with Waithaka, which held that last-mile

delivery drivers for Amazon were engaged in interstate commerce,

even though their "role in transporting the goods occurred entirely

within a single state." 966 F.3d at 20. Drawing from cases

interpreting the Federal Employers' Liability Act (FELA), we

reasoned that in some circumstances workers can engage in

interstate commerce by "transporting goods that had come from out

of state or that were destined for out-of-state locations." Id.

The FELA cases supporting this reasoning involved railroad workers

on trains hauling goods in the intrastate portion of an integrated

interstate journey. Id. at 20–21 (citing Seaboard Air Line Ry. v.

Moore, 228 U.S. 433, 434–35 (1913) and Phila. & Reading Ry. Co. v.

Hancock, 253 U.S. 284, 285–86 (1920)).

We shed light on what it means for an interstate journey

to be "integrated" in Cunningham, which involved rideshare drivers

for Lyft who transported passengers to and from Logan Airport in

Boston, Massachusetts. 17 F.4th at 250–51. We concluded that

such a trip was not part of an integrated interstate journey, but

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rather was a separate and independent intrastate journey taking

place before or after the passenger's interstate journey. Id.

Informing our analysis in Cunningham were two scenarios

considered by the Supreme Court in United States v. Yellow Cab

Co., 332 U.S. 218 (1947), overruled on other grounds by Copperweld

Corp. v. Indep. Tube Corp., 467 U.S. 752, 759–61, 770–71, 777

(1984):

The first scenario involved the transfer of
passengers and their luggage between rail
stations in Chicago. At the time, most
passengers traveling interstate by rail
through Chicago were required to disembark
from a train at one station and travel up to
two miles to board another train at another
station to continue their interstate journey.
The railroads often agreed with their
passengers to provide transit between the two
stations. The railroads then contracted with
cab companies to supply the vehicles and
drivers for this connecting transit.

The second scenario involved taxi cabs in the
course of their normal local taxi service
throughout Chicago arranging with passengers
to drive them to or from various locations,
including the rail stations at the beginning
or end of their rail journeys.

Cunningham, 17 F.4th at 250 (internal citations omitted). The

Supreme Court held that the taxi service in the first scenario was

"clearly a part of the stream of interstate commerce" because the

intrastate trip between rail stations "must be viewed in its

relation to the entire journey rather than in isolation" and, "[s]o

viewed, it is an integral step in the interstate movement." Yellow

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Cab, 332 U.S. at 228–29. As we explained in Cunningham, "[t]his

made common sense: The typical passenger undoubtedly viewed his

or her trip as one interstate journey, with the mid journey

transfer smack within the flow of that trip." 17 F.4th at 250.

In the second scenario, by contrast, the taxi service to and from

the rail stations was "not a constituent part of the interstate

movement," but rather was "quite distinct and separate from the

interstate journey," which began when the passenger "board[ed] the

train at the station and . . . end[ed] when he disembark[ed] at

the station in the city of destination." Yellow Cab, 332 U.S. at

231–32; see Cunningham, 17 F.4th at 250.

The Lyft drivers in Cunningham were more similar to the

cab drivers in the second Yellow Cab scenario than those in the

first because they "contract[ed] with the passenger as part of the

driver's normal local service to take the passenger to the start

(or from the finish) of the passenger's interstate journey."

Cunningham, 17 F.4th at 250. Moreover, "[t]he airlines [did] not

agree to provide the relevant ground transit, and . . . neither

Lyft nor Lyft drivers contract[ed] with the airlines to help the

airlines perform such an undertaking." Id. at 251. We

distinguished Cunningham from Waithaka on these grounds:

Our decision in Waithaka is not to the
contrary. There Amazon (like the railroads in
Yellow Cab) agreed with Amazon customers to
transport goods interstate from their point of
origin to the customer's home. The local

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 delivery drivers (like the taxi companies in
the first scenario of Yellow Cab) then agreed
with Amazon to carry the goods for a portion
of that single interstate journey ("the so-
called 'last mile'"). Here, by contrast,
there is no evidence of any such agreements
between Lyft and the airlines.

Id. (internal citations omitted).

This background then informed our opinion in Immediato,

where we summarized our prior analysis:

The term "engaged in foreign or interstate
commerce" in section 1 can apply to workers
who are engaged in the interstate movement of
goods, even if they are responsible for only
an intrastate leg of that movement. See
Waithaka, 966 F.3d at 26. Their work, though,
must be a constituent part of that movement,
as opposed to a part of an independent and
contingent intrastate transaction. See
Cunningham, 17 F.4th at 251; see also Yellow
Cab, 332 U.S. at 231.

54 F.4th at 77.

Against this background, we held that couriers who

delivered goods intrastate from restaurants and grocery stores to

consumers who ordered those goods from the restaurants and grocery

stores were not engaged in interstate commerce for purposes of

section 1 of the FAA. Id. at 80. Although the goods had traveled

interstate to reach the restaurants and grocery stores, that

"interstate journey terminate[d] when the goods arrive[d] at the

local restaurants and retailers to which they [were] shipped."

Id. at 78. The couriers' subsequent intrastate deliveries of the

goods from the restaurants and grocery stores to consumers were

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"part of entirely new and separate transactions" that were "not

themselves within interstate commerce." Id. We distinguished

Waithaka because in that case "customers bought goods directly

from Amazon, which orchestrated the interstate movement of those

goods and arranged, as part of the purchase, for their delivery

directly to the customer." Id. In Immediato, by contrast, "the

goods [were] purchased from local vendors -- and at that point,

the goods [had] already exited the flow of interstate commerce"

because "the interstate movement terminated when the goods arrived

at local restaurants and grocery stores." Id.

These cases suggest that the contractual relationships

among the various actors play an important role in determining

whether an intrastate trip is part of an integrated interstate

journey. In Waithaka, Amazon contracted with its customers to get

the goods to them, and also contracted with the last-mile delivery

drivers to complete that interstate journey. Similarly, in the

first Yellow Cab scenario, the railroads contracted with travelers

to provide transport between the rail stations, and also contracted

with the cab companies to provide that transport.

By contrast, in Immediato, the companies who sent the

goods interstate to the restaurants and grocery stores had no

contractual interest or obligation in the delivery of those goods

to consumers by couriers. That delivery occurred in an entirely

separate intrastate transaction. Similarly, in Cunningham, the

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airlines had no contractual relationship with the Lyft drivers or

passengers regarding the passengers' local rides to and from Logan

Airport. Nor did the railroads in the second Yellow Cab scenario

have a contractual relationship with the cab companies or

passengers regarding the cabs' local service to and from the rail

stations.

In line with the foregoing, on remand the district court

should determine whether the merchandisers' transportation of the

POP materials to the retail stores is more like the transportation

in Waithaka and the first Yellow Cab scenario or more like the

transportation in Immediato, Cunningham, and the second Yellow Cab

scenario. For now, all we need to say is that we reject Premium's

argument that the record as it now stands categorically forecloses

a finding that Premium's merchandisers engaged in interstate

commerce when they transported the POP materials intrastate. To

the contrary, the current record would support a finding that

Premium had a contractual relationship with the retailers under

which it agreed to perform services that included the delivery of

POP materials to the retailers. The record would also support a

finding that Premium had a contractual relationship with the

merchandisers under which (with a frequency yet to be determined)

Premium required them to, among other things, deliver those POP

materials to the intended retailers. If the factual findings made

on remand confirm this view of how the transport of POP materials

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occurred, then the journey of the POP materials from Premium to a

merchandiser's home, and from the merchandiser's home to the

designated retailer, was an integrated interstate journey.

This conclusion comports with common sense. Suppose,

for example, that Premium, having agreed to deliver materials to

retailers, hired a third-party delivery service to transport the

materials from Premium to each out-of-state retailer. No one could

reasonably dispute that those trips would be integrated interstate

journeys that included the last few miles driven, even if different

drivers covered different legs of each trip. See Waithaka, 966

F.3d at 20. Premium's use of its own employees to carry the

materials for the last part of each interstate journey does not

turn the journey into two unconnected trips. Certainly Premium

would not tell a retailer that it had completed its delivery

commitment when the goods arrived at the home of a Premium

employee. In Immediato, by contrast, the out-of-state sources of

the restaurants' foods undoubtedly would not have regarded their

goods as still being in transit after they arrived at the

restaurants.8 Moreover, in this case, the record would support a

8 One can imagine Premium providing a retailer a link to
track the shipment of its POP materials, which would reflect that
the materials were still in transit after arriving at the
merchandiser's home. By contrast, an out-of-state food source in
Immediato would not send such a link to a consumer, because it has
no idea which consumers will ultimately receive its food products.
Rather, it would send the link to the restaurant that ordered the

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finding of fact that the POP materials -- from the beginning --

were all destined for particular retail stores. Indeed, when Fraga

received the materials, she would sort them by intended

destination. So at the time the materials left Premium, it would

appear that one could determine which materials were destined for

which stores. Under these circumstances, any sensible person

looking at the situation would understand that the materials

underwent a single journey from Premium to the retail stores, with

a "last-mile" layover at the merchandisers' homes.

Premium argues that applying the section 1 exemption in

such a manner would open the floodgates and sweep into that

exemption "any worker who receives out of state shipments for later

use in their primary job," including, for example, an "electrician

[who] worked for an out-of-state company who shipped parts to her

house for use on the job." And as Premium points out, the section 1

exemption in the FAA is "afforded a narrow construction" that is

not intended to sweep in all employment contracts. Circuit City,

532 U.S. at 118.

Premium's example and its floodgates argument generally

overlook the important point that we have just made: As best we

can tell on this record, the POP materials began their interstate

journeys intended for specific retail stores as part of Premium's

food, and the link would reflect the completion of the shipment
upon delivery to the restaurant.

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contractual obligations to deliver materials to those retailers.

If that is so, then the journey resembles that of a book that

leaves an Amazon warehouse in New York headed for a particular

purchaser in Massachusetts via a local Massachusetts driver who

will see to it that the book completes the last mile of its

interstate journey. See Waithaka, 966 F.3d at 13, 20–21.

Premium's electrician example more closely resembles an out-of-

state delivery that ends in the electrician's general inventory,

followed by an in-state trip to a customer's home when the

electrician later determines the part is required -- much like the

two journeys taken by, e.g., a bag of potato chips in Immediato.

See Immediato, 54 F.4th at 78; cf. Jacksonville Paper, 317 U.S. at

569–70 (holding that goods ordered by a wholesaler based on

anticipation of need, as opposed to "pursuant to a prior order,

contract, or understanding," may no longer be traveling in

interstate commerce when delivered to the wholesaler's in-state

customers for purposes of the Fair Labor Standards Act).

Of course, if what Premium has in mind with its example

is a class of workers who complete deliveries of light fixtures

shipped from out of state to homeowners who order the fixtures

from an out-of-state manufacturer, then we see no reason why those

workers would not be within the section 1 exemption merely because

they are electricians who also install the fixtures -- assuming

that the workers complete such deliveries on a frequent basis. We

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question, though, whether many electricians have substantial job

duties that can be reasonably described in this manner.9

That the section 1 exemption today might include many

more "transportation workers" who are not seamen or rail workers

than it did in 1925 -- such as people who frequently load luggage

onto airplanes or perform last-mile deliveries of merchandising

materials shipped from out of state -- does not mean that the

exemption is no longer construed narrowly. Rather, it merely

reflects that many more workers fit into that narrow exemption

because many more goods travel many more miles by air and road

than was the case in 1925.

Finally, we do not address Fraga's alternative argument

that Premium merchandisers satisfy the interstate commerce element

of the section 1 exemption because they themselves sometimes drove

across state lines to deliver POP materials. The district court

may address this argument on remand once it determines how many

merchandisers made such trips and how often they did so.

9 There may be other reasons that, on the facts of a
particular case, an electrician similar to the hypothetical one
Premium describes does not fall within the exemption. Because we
find the lack of an integrated interstate journey sufficient to
resolve Premium's floodgates concern, we do not address whether,
under more specific facts, a particular electrician would fall
within the exemption.

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 IV.

The district court ended up mostly in the correct place:

More factfinding is required to decide whether to compel

arbitration. We say "mostly" only because the district court

should have finally decided the arbitrability issue before

allowing any litigation on the merits. Otherwise, it is

effectively denying Premium's motion by forcing Premium to

litigate the merits of the case. We therefore vacate the district

court's order to the extent it is inconsistent with this opinion

and remand for further proceedings consistent with this opinion.

No costs are awarded to any party.

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