                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §
 WESTERN DAIRY TRANSPORT, LLC,                                  No. 08-13-00175-CV
                                                §
                        Appellant,                                  Appeal from
                                                §
 v.                                                             120th District Court
                                                §
 MARCIAL FELIPE VASQUEZ,                                      of El Paso County, Texas
                                                §
                        Appellee.                             (TC # 2012-DCV-06569)
                                                §


                                          OPINION

       In this consolidated interlocutory appeal and petition for writ of mandamus,

Appellant/Relator, Western Dairy Transport, LLC, challenges the trial court's order denying its

motion to compel arbitration in the suit filed by Appellee/Real Party in Interest, Marcial Felipe

Vasquez. We conclude that we lack jurisdiction over the petition for writ of mandamus. In the

interlocutory appeal, we conclude that the trial court did not abuse its discretion by denying

Western Dairy’s motion to compel arbitration.

                                     FACTUAL SUMMARY

       Vasquez worked as a mechanic for Western Dairy Transport, a trucking company, and

suffered a hernia while lifting a truck tire. Western Dairy is not a subscriber to Texas’s workers’

compensation system, but instead provides employees like Vasquez with an ERISA injury
benefit plan.     The plan includes a mandatory arbitration provision, which states that it is

governed by the Federal Arbitration Act (the “FAA”). Employee’s claims for work-related

personal injuries are within the scope of matters that must be arbitrated under the plan. Vasquez

was covered under the plan, received benefits thereunder for his injuries, and signed an

acknowledgment form summarizing the arbitration requirement.1 Vasquez filed his personal

injury claim against Western Dairy in the 120th Judicial District Court of El Paso County in

November of 2012. Western Dairy responded to the suit with a motion to compel arbitration,

which the trial court denied in June of 2013. Western Dairy challenges the denial by both

interlocutory appeal and a petition for writ of mandamus.

                         MANDAMUS OR INTERLOCUTORY APPEAL?

        As a preliminary matter, we address whether this court has jurisdiction over the

interlocutory appeal or the petition for writ of mandamus. When an arbitration agreement is

subject to the FAA, a court of appeals has jurisdiction over an interlocutory appeal challenging

the denial of a motion to compel arbitration.2 See TEX.CIV.PRAC.&REM.CODE ANN. § 51.016

(West Supp. 2013). If the FAA does not control, however, the agreement to arbitrate may still be

enforceable under Texas common law. In re Swift Transp. Co., Inc., 311 S.W.3d 484, 491

(Tex.App.--El Paso 2009, orig. proceeding). See also L.H. Lacy Company v. City of Lubbock,



1
   Although Vasquez initially contended that he did not sign the acknowledgement form, before this Court he
concedes that it does contain his signature, and that the arbitration provision was a mandatory condition of his
employment regardless of whether he did or did not sign the form.
2
   Section 51.016 permits interlocutory appeals in matters subject to the FAA under the same circumstances in
which they are permitted by 9 U.S.C. § 16 in federal actions. See TEX.CIV.PRAC.&REM.CODE ANN. § 51.016 (West
Supp. 2013). The Texas Legislature enacted Section 51.016 in order to eliminate the necessity of parallel
mandamus and interlocutory proceedings following the denial of a motion to compel arbitration implicating both the
FAA and the Texas Arbitration Act. See In re Santander Consumer USA, Inc., No. 01-12-00728-CV, 2013 WL
652721, at *8 (Tex.App.--Houston [1st Dist.] Feb. 21, 2013, orig. proceeding), citing SENATE COMM. ON STATE
AFFAIRS, BILL ANALYSIS, TEX. S.B. 1650, 81st Leg., R.S. (2009). No solution to the parallel proceedings problem
yet exists in cases such as this, however, where entitlement to arbitration is urged under both the FAA and Texas
common law.

                                                        2
559 S.W.2d 348, 351-52 (Tex. 1977)(holding that common law arbitration and statutory

arbitration are “cumulative” and part of a “dual system”).                      Mandamus is the appropriate

procedure by which we may review the trial court's ruling on a motion to compel arbitration

under the common law. See In re Paris Packaging, 136 S.W.3d 723, 727 & n.7 (Tex.App.--

Texarkana 2004, orig. proceeding).

         Western Dairy seeks to compel arbitration under the FAA, and alternatively, under Texas

common law principles. But as Western Dairy asserted before the trial court, its injury benefit

plan specifically provides that “the [FAA] will govern the interpretation, enforcement, and

proceedings under this dispute resolution requirement.” Because the plan expressly provides that

it will be interpreted under the FAA, we dismiss the original proceeding in mandamus for lack of

jurisdiction and consider only the interlocutory appeal. J.B. Hunt Transport, Inc. v. Hartman,

307 S.W.3d 804, 808 (Tex.App.--San Antonio 2010, no pet.)(refusing to consider enforceability

of arbitration agreement under Texas law when the agreement specifically provided that it was to

be interpreted and enforced under the FAA).3 Palcko v. Airborne Express, Inc., 372 F.3d 588,

596 (3rd Cir. 2004)(arbitration agreement held enforceable under state law where agreement

specified that state law would control in the event FAA was inapplicable).




3
    The FAA provision in Hartman was virtually identical to the one present here: “the [FAA] will govern the
interpretation, enforcement, and proceedings under this arbitration requirement.” Hartman, 307 S.W.3d at 808. The
court’s determination that this language barred application of state arbitration law flowed from a line of cases
originating with the First Court of Appeals’ decision in In re Kellogg Brown & Root, 80 S.W.3d 611, 617
(Tex.App.--Houston [1st Dist.] 2002, orig. proceeding). In Kellogg, the Houston court held that such language
constitutes a choice-of-law provision in favor of the FAA, making it unnecessary for the party desiring arbitration
“to establish that the transaction at issue involves or affects interstate commerce.” Id. Because the FAA’s interstate
commerce requisite is embodied in 9 U.S.C. § 2, which is the Act’s “primary substantive provision” Moses H. Cone
Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), we agree that language stipulating to the
FAA’s application forestalls any need to establish that the base transaction involves interstate commerce. Such
language does not preclude, however, the necessity of determining whether 9 U.S.C. § 1 excludes the employee
from the FAA’s control. This matter must be analyzed under the FAA itself. 9 U.S.C. § 1; Circuit City Stores, Inc.
v. Adams, 532 U.S. 105, 119 (2001).

                                                          3
                                     APPLICABLE LAW

       A party seeking to compel arbitration under the FAA must establish: (1) the existence of

a valid, enforceable arbitration agreement, and (2) that the claims at issue fall within the

agreement's scope. In re FirstMerit Bank, 52 S.W.3d 749, 753 (Tex. 2001)(orig. proceeding).

There is a presumption in favor of arbitration under both state and federal law when ambiguities

arise in regard to an arbitration agreement’s scope, but there is no such presumption in regard to

the agreement’s validity. Id.; Fleetwood Enterprises, Inc. v. Gaskamp, 280 F.3d 1069, 1074 (5th

Cir. 2002). Validity is instead determined by the requirements of general contract law of the

applicable state.   Morrison v. Amway Corp., 517 F.3d 248, 254 (5th Cir. 2008); In re

AdvancePCS Health L.P., 172 S.W.3d 603, 606 (Tex. 2005)(orig. proceeding).              Once the

questions of validity and scope are resolved affirmatively, the court then considers whether any

federal statute or policy “renders the claims nonarbitrable.”     Mendez v. New Bell General

Services, L.P., 727 F.Supp.2d 585, 589 (W.D.Tex. 2010), quoting Sherer v. Green Tree

Servicing LLC, 548 F.3d 379, 381 (5th Cir. 2008). The party seeking to invalidate an arbitration

agreement bears the burden of establishing this matter, as well as other defenses to arbitration,

such as unconscionability, fraud, duress, or waiver. Gonzales v. Brand Energy & Infrastructure

Services, Inc., No. H-12-1718, 2013 WL 1188136, at * 2 (S.D.Tex. Mar. 20, 2013), citing Carter

v. Countrywide Credit Indus., Inc., 362 F.3d 294, 297 (5th Cir. 2004). In re Oakwood Mobile

Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999), abrogated on other grounds by, In re

Halliburton Co., 80 S.W. 3d 566, 571 (Tex. 2002)(orig. proceeding).

       Whether an agreement imposes a duty to arbitrate is a question of law that the appellate

court reviews de novo. In re C & H News Co., 133 S.W.3d 642, 645 (Tex.App.--Corpus Christi

2003, orig. proceeding). The trial court’s related factual determinations, however, fall under the



                                                4
no-evidence standard. Sidley Austin Brown & Wood, LLP v. J.A. Green Development Corp., 327

S.W.3d 859, 862-63 (Tex.App.--Dallas 2010, no pet.)(analyzing these standards of review for

purposes of interlocutory review under Section 51.016 of the Civil Practice and Remedies Code).

This standard is the same as the abuse of discretion standard of review. Id.

         THE SCOPE AND VALIDITY OF THE ARBITRATION AGREEMENT

       Western Dairy has satisfied its initial burden of demonstrating the existence of a valid

arbitration agreement. The injury benefit plan and plan summary set out the terms of the

arbitration provision. Vasquez signed an acknowledgement form summarizing the arbitration

provision and confirming his receipt of the plan summary. Additionally, there is adequate

consideration in support of the arbitration agreement. A summary of the plan provides that the

arbitration policy applies to claims brought by either Western Dairy or Vasquez, and that the

agreement to arbitrate is binding upon both. Our Supreme Court holds that reciprocal pledges to

arbitrate constitute sufficient consideration so long as the employer cannot unilaterally opt out of

its promise to arbitrate. In re Halliburton Co., 80 S.W.3d at 569-70; J.M. Davidson, Inc. v.

Webster, 128 S.W.3d 223, 228 (Tex. 2003). The plan specifies that Western Dairy cannot amend

or terminate the arbitration provision with respect to any injury claim arising before any effort to

amend or terminate is made. In Odyssey Healthcare, the Texas Supreme Court held that a

virtually identical termination and amendment clause did not render the arbitration agreement

illusory. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 424 (Tex. 2010)(orig. proceeding).

See also In re Halliburton Co., 80 S.W.3d at 569-70. Accordingly, Western Dairy does not have

the right to unilaterally opt out of its pledge to arbitrate. Western Dairy has also established that

Vasquez’s personal injury claim falls within the scope of the arbitration agreement.            The

acknowledgment form Vasquez signed provides as follows: “I also acknowledge that [the plan]



                                                 5
includes a mandatory company policy requiring that claims or disputes relating to the cause of an

on-the-job injury . . . be submitted to [arbitration].” Accordingly, the only remaining issue is

whether any federal statute or policy renders the claim nonarbitrable.

        DOES 9 U.S.C. § 1 EXCLUCE VASQUEZ FROM THE FAA’S CONTROL?

        Section 2 of the FAA provides that arbitration agreements “shall be valid, irrevocable,

and enforceable, save upon such grounds as exist at law or in equity for the revocation of any

contract.” 9 U.S.C. § 2. Section 1 sets forth the exclusions to Section 2. 9 U.S.C. § 1. Section

1, however, expressly limits the reach of the FAA by exempting from its coverage the “contracts

of employment of seamen, railroad employees, or any other class of workers engaged in foreign

or interstate commerce.”4 Id. The Unites States Supreme Court has analyzed section 1, focusing

on the residual phrase, “or any other class of workers engaged in foreign or interstate

commerce.” Circuit City Stores, Inc., 532 U.S. at 112.

        In Circuit City, the Supreme Court reviewed the Ninth Circuit’s holding that the residual

phrase exempted all employment contracts from the FAA, including that of a sales counselor at a

retail store whose job duties were not closely related to interstate commerce. Id. at 110, 112.

The court held that the Ninth Circuit’s interpretation failed to give proper effect to section 1’s

preceding reference to “seamen” and “railroad employees,” and was thus too broad. Id. at 114.

In reaching this conclusion, the court applied the maxim of ejusdem generis, which stands for the

principle that where “general words follow specific words in a statutory enumeration, the general

words are construed to embrace only objects similar in nature to those objects enumerated by the

preceding specific words.” Id. at 114-15 [Citations omitted]. Section 1’s residual phrase is thus

controlled and defined by the statute’s preceding reference to seaman and railroad employees.


4
  Western Dairy does not argue that the arbitration provision is not a “contract of employment” within the meaning
of 9 U.S.C. § 1.

                                                        6
Id. at 115, 119. Accordingly, 9 U.S.C. § 1 “exempts from the FAA only employment contracts

of transportation workers.” Id. at 119. The Circuit City opinion does not, however, provide

express direction for determining whether an individual employee qualifies as a “transportation

worker.” Federal courts have subsequently made this determination on a case-by-case basis.

See, e.g., Lorntzen v. Swift Transp., Inc., 316 F.Supp.2d 1093, 1097 (D.Kan. 2004).

       “In order to be considered a transportation worker, an employee must actually be

employed in the transportation industry, that is, an industry directly involved in the movement of

goods.” Zamora v. Swift Transp. Corp., No. EP-07-CA-00400-KC, 2008 WL 2369769, at *6

(W.D.Tex. June 3, 2008), citing Lenz v. Yellow Transp., Inc., 431 F.3d 348, 351 (8th Cir. 2005).

There is no dispute that Western Dairy, as an interstate trucking company, is part of the

transportation industry. “[T]he more related to the transportation industry an enterprise is, the

less necessary it becomes for the employee to be directly transporting goods” in order for

Section 1’s exclusion to apply. Id., quoting Veliz v. Cintas Corp., No. C-03-1180-SBA, 2004

WL 2452851, at *5 (N.D.Cal. Apr. 5, 2004). Nonetheless, employment within the transportation

industry alone is not sufficient. The employee's individual responsibilities “must be closely

related to interstate commerce,” although he “need not actually transport the goods himself for

the exemption to apply.” Id., citing Lenz, 431 F.3d at 351-52.

       In Lenz v. Yellow Transp., Inc., the Eighth Circuit set out a nonexclusive eight-part test

for determining whether an employee is a transportation worker for purposes of the 9 U.S.C. § 1

exclusion. Lenz, 431 F.3d at 352. At least two federal district courts situated in Texas have

applied the Lenz test. Zamora, 2008 WL 2369769 at *6; Barker v. Halliburton Co., No. H-07-

2677, 2008 WL 1883880, at *1-2 (S.D.Tex. Apr. 25, 2008). Lenz’s eight nonexclusive factors

are as follows: (1) whether the employee works in the transportation industry; (2) whether the



                                                7
employee is directly responsible for transporting goods in interstate commerce; (3) whether the

employee handles goods that travel interstate; (4) whether the employee supervises employees

who are themselves transportation workers, such as truck drivers; (5) whether like seamen or

railroad employees, the employee is within a class of employees for which special arbitration

already existed when Congress enacted the FAA; (6) whether the vehicle itself is vital to the

commercial enterprise of the employer; (7) whether a strike by the employee would disrupt

interstate commerce; and (8) the nexus that exists between the employee's job duties and the

vehicle the employee uses in carrying out his duties. Lenz, 431 F.3d at 352. Western Dairy

concedes that these factors properly embrace the standards announced by the Supreme Court in

Circuit City, Inc. v. Adams.

       Beginning with the first factor of Lenz, there is no question that Vasquez works in the

transportation industry. See Lenz, 431 F.3d at 351. This factor weighs in favor of determining

that Vasquez is a transportation worker. The second factor, Vasquez’s direct responsibility for

the movement of goods in interstate commerce, weighs against Vasquez. Unlike truck drivers,

who are indisputably transportation workers, Vasquez is not personally responsible for the

movement of goods. See id. (noting that truck drivers are “indisputably” transportation workers

for purposes of 9 U.S.C. § 1), citing Harden v. Roadway Package Sys., Inc., 249 F.3d 1137 (9th

Cir. 2001). We consider the third factor to be neutral, because although Vasquez does not handle

goods that travel interstate, he handles the indispensable instrumentality of their travel: the trucks

themselves. Id. at 352. Vasquez does not satisfy the fourth Lenz factor as he does not supervise

employees who are themselves transportation workers. Id. The fifth factor--whether Vasquez is

subject to special arbitration provisions like seamen and railroaders--is also effectively neutral to

our analysis. While there has been no showing that Vasquez is subject to special arbitration



                                                  8
provisions, there has been no showing that any Western Dairy employee is subject to such

provisions. Indeed, it appears that there are no such special arbitration provisions even for truck

drivers, despite the fact that they unquestionably qualify as transportation workers.

          The last three Lenz factors, which consider the importance of trucks and truck mechanics

to Western Dairy’s overall business, weigh heavily in favor of Vasquez being a transportation

worker. The sixth factor asks whether the vehicle itself is vital to the commercial enterprise of

the employer. Id. The trucks that Vasquez serviced and kept running for Western Dairy are not

just vital to Western Dairy’s business, they are its business. Id. For that reason, seventh, a strike

by Western Dairy’s mechanics would clearly disrupt its participation in interstate commerce. Id.

Eighth and lastly, there is a very clear nexus between the job duties of a mechanic and the

vehicles he works on. Without trucks there are no mechanics; without mechanics, there are no

trucks.

          In sum, four of the Lenz factors weigh heavily in favor of holding Vasquez to be a

transportation worker, two weigh against it, and two are neutral to our analysis. We hold that

Vasquez is a transportation worker for purposes of 9 U.S.C. § 1.

          Western Dairy asserts that three other courts have previously determined that a mechanic

is not a transportation worker for purposes of Section 1. Two of the cases Western Dairy relies

on did not concern exclusion under 9 U.S.C. § 1, but turned instead on whether the mechanics’

claims were within the scope of the arbitration agreements, and/or whether the agreement was

unconscionable. See Sammons v. Sonic-North Cadillac, Inc., No. 6:07-cv-277-Orl-19DAB, 2007

WL 2298032, at *2-3 (M.D.Fla. 2007, Aug. 7, 2007)(turning on scope); Giordano v. Pep Boys-

Manny, Moe, & Jack, Inc., No. CIV. A. 99-1281, 2001 WL 484360, at *3-7 (E.D.Pa. Mar. 29,

2001)(turning on scope and unconscionability). Western Dairy’s third case, Dwyer v. Eagle



                                                 9
Marine Servs. Ltd., Oakland, was an effort by a plaintiff-employee to vacate an arbitrator’s

award entered under the Labor Management Relations Act (“LMRA”) by arguing that the FAA

rather than the LMRA controlled. See Dwyer v. Eagle Marine Servs. Ltd., Oakland, No. C 10-

4440 SBA, 2011 WL 2600916, at * 3 (N.D.Cal. June 30, 2011). The employer, rather than the

employee, argued that the FAA was inapplicable by virtue of 9 U.S.C. § 1. Id. at *3-4. The

court found the record to be inconclusive, however, and did not determine whether the mechanic

was excluded under section 1. Id. In short, none of these cases hold that a mechanic is not a

transportation worker under section 1.5

        Western Dairy also relies on cases in which employees other than mechanics were

determined not to be transportation workers. These cases are obviously factually distinct. See

Omoruyi v. Grocers Supply Co., Inc., No. 14-09-00151-CV, 2010 WL 1992585, at *4

(Tex.App.--Houston [14th Dist] May 20, 2010, no pet.)(holding that a warehouse employee was

not a transportation worker); and Kropfelder v. Snap-On Tools Corp., 859 F. Supp. 952, 958-59

(D. Md. 1994)(same). See also Tran v. Texan Lincoln Mercury, Inc., No. H-07-1815, 2007 WL

2471616, at *4 (S.D. Tex. Aug. 29, 2007)(holding that a car dealership’s finance manager was

not transportation worker). Unlike Vasquez, the employees in these cases were not “so closely

related [to interstate commerce] as to be in practical effect part of it.” Lenz, 431 F.3d at 352,

quoting Palcko v. Airborne Express, Inc., 372 F.3d 588, 593 (3rd Cir. 2004).

        We hold that Vasquez is a transportation worker for purposes of 9 U.S.C. § 1, and that he

is thus exempt from the FAA’s control. As such, the trial court did not abuse its discretion by

denying Western Dairy’s motion to compel arbitration.


5
  Another case cited by Western Dairy, Mamat v. United Fruit Co., held that an employee who was part of a “shore
gang” that effected repairs on a ship did not qualify as a seaman, but was instead a longshoreman, and thus that his
personal injury claims were barred by the Longshoremen's Compensation Act, 33 U.S.C. § 901, et seq. Mamat v.
United Fruit Co., 39 F.Supp. 103 (S.D.N.Y. 1940). This case predates the FAA, which was enacted in 1947.

                                                        10
July 30, 2014
                                    ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.




                                              11
