Amicus Curiae Brief — Epic Sys. Corp. v. Lewis, 138 S. Ct. 42 (2017) (No. 16-285)

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Nos. 16-285, 16-300, and 16-307

In the Supreme Court of the Anited States

EPIC SYSTEMS CORPORATION, PETITIONER

Vv.

JACOB LEWIS

ERNST & YOUNG LLP, ET AL., PETITIONERS

Vv.

STEPHEN MORRIS, ET AL.

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

Murpny OIL USA, INC., ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE FIFTH, SEVENTH, AND NINTH CIRCUITS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS IN NOS. 16-285 AND 16-300

AND SUPPORTING RESPONDENTS IN NO. 16-307

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

MALCOLM L. STEWART

Deputy Solicitor General

ALLON KEDEM

Assistant to the Solicitor

General

Dea ny

as LC. 1

SupromeCtBiriefel@usdo; pov

(202) 514-2217

QUESTION PRESENTED

Whether arbitration agreements that bar individual

employees from pursuing work-related claims on a col-

lective or class basis limit the employees’ right under

the National Labor Relations Act to engage in “concerted

activities” in pursuit of their “mutual aid or protection,”

29 U.S.C. 157, and whether such agreements are enforce-

able under the Federal Arbitration Act, 9 U.S.C. 2.

(1)

TABLE OF CONTENTS

Page

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When parties agree to arbitrate employment-related

claims bilaterally, the FAA requires enforcement of

those agreements.... unde a

A. The NLRA does not ‘preclude enforcement

of an agreement to arbitrate employees’

command to the COntrary...............c.cesceseesees 15

2. The NLRA does not contain a specific

congressional command precluding

enforcement of plaintiffs’ bilateral

arbitration agreements .....................ccccceseseeeees 18

B. Enforcing the parties’ arbitration agreements

in these cases, in accordance with the FAA,

would not deprive plaintiffs of any substantive

right conferred by another federal statute........... 25

C. The FAA’s saving clause provides no sound

basis for declining to enforce the parties’

arbitration agreements..................sseceeeseseeereneeneees 29

I aicinceictiariicisteaecilenhensinianiitenetmeinmariansnnmmnnnpinmnmmnnianion 34

Appendix — Statutory provisions. .................cccccseeeeseeeeeeres la

(IIT)

TABLE OF AUTHORITIES

Cases: Page

AT&T Mobility LLC v. Concepcion,

BEB U.S. SSB (]011)........ccercccrocsccssccccesseserenees 12, 30, 31, 32, 33

Allied-Bruce Terminix Cos. v. Dobson,

TE 31

American Express Co. v. Italian Colors Rest.,

133 S. Ct. 2804 (2018) 2.0.2... cecccneeeeeneeeeees 13, 14, 25, 26, 30

Buckeye Check Cashing, Inc. v. Cardegna,

i crercnrnsciesinasenniveocenenconnnpescsnennsnanenns 2

CompuCredit Corp. v. Greenwood,

nee passim

D.R. Horton, Inc., 357 N.L.R.B. 2277 (2012).........00000 3, 4, 8

D.R. Horton, Inc. v. NLRB, 737 F.3d 344

SET 4

DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015)............. 7

Dean Witter Reynolds Inc. v. Byrd,

SS 2

Doctor's Assocs., Inc. v. Casarotto,

EE iT 31

Eastex, Inc. v. NLRB, 437 U.S. 556 (1978) ..........ccccccceeceeeee 24

Gilmer v. Interstate/Johnson Lane Corp.,

ED nececesnccrneeemenesesctinmneennnnies 9, 15, 16, 17, 31

Green Tree Fin. Corp.-Ala. v. Randolph,

gE 16, 31

Hoffman Plastic Compounds, Inc. v. NLRB,

ET 24

JI. Case Co. v. NLRB, 321 U.S. 332 (1944)............ 11, 27, 28

Kindred Nursing Ctrs. Ltd. P’ship, No. 16-32

EE 31, 32

Litton Fin. Printing Div. v. NLRB,

RE EE 30

Cases—Continued: Page

Mitsubishi Motors Corp. v. Soler Chrysiler-

Plymouth, Inc., 473 U.S. 614 (1985) .............. 16, 17, 25, 31

Moses H. Cone Mem' Hosp. v. Mercury Constr.

Corp., 460 U.S. 1 (1983) ....ccccscccssecssssvesceessresenseunsensssessecenses 12

NLRB v. Alternative Entm't, Inc., No. 16-1385,

2017 WL 2297620 (6th Cir. May 26, 2017)...... 19, 21, 23, 24

National Licorice Co. v. NLRB,

B09 U.S. BHO (1940)...........ccecccccsersceseeccerersnseeeneees 11, 27, 28, 29

Preston v. Ferrer, 552 U.S. 346 (2008) ............ccccccccceceeeeeees 31

Rodriguez de Quijas v. Shearson/Am. Express, Inc.,

ie Se rcettnnsncnnssitescenssantantsnensnneniann 16, 17, 18, 31

Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974) ....... 15, 16

Shady Grove Orthopedic Assocs., P_A. v. Allstate

Ins. Co., 559 U.S. 393 (2010) ..........cccccecseerseeessereeneccceeeneneees 26

Shearson/Am. Express Inc. v. McMahon,

ee EE ericierinesnsvisnecemunenpnncansstensesesssesecses passim

Southland Corp. v. Keating, 465 U.S. 1 (1984).................. 31

Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp.,

I iciriincensetectintesenennneresceatecneseesnsurees 11, 12, 30

Wilko v. Swan, 346 U.S. 427 (1958) .0........-.ccccccceseeeeececeneeees 15

Statutes and rules:

Credit Repair Organizations Act, 15 U.S.C. 1679 et seq. ........17

TST a 17

TT a a ES 17, 18

ic icinnerdnnericiatiieeiratmatanientnneveidenannecinnitin 17

Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq........... 5

Federal Arbitration Act, 9 U.S.C. 1 et 8€q. ..........ccccccceeeereeee 2

RR RR EE RE passim, la

Statutes and rules—Continued: Page

National Labor Relations Act, 29 U.S.C. 151 et seq............. 3

TIE IN ES I le Rs PAN 3

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TTT tniniicnseitiininisinsioniennigndsevtiineinnnecstaigbaninaliide 26

Sa tinitccneniqninicnsasenncesmietianniemnecennies 18, 20, 26

Securities Act of 1933, 15 U.S.C. 77a et seq.:

EES Oe 15

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Securities Exchange Act of 1934, 15 U.S.C. 78a et seq.:

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Fed. R. Civ. P.:

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Vil

Miscellaneous: Page

H.R. Rep. No. 1147, 74th Cong., Ist Sess. (1935)............... 22

S. Rep. No. 573, 74th Cong., Ist Sess. (1935)................ 22, 23

In the Supreme Court of the Gnited States

No. 16-285

EPIC SYSTEMS CORPORATION, PETITIONER

JACOB LEWIS

No. 16-300

ERNST & YOUNG LLP, ET AL., PETITIONERS

Vv.

STEPHEN MORRIS, ET AL.

No. 16-307

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

MURPHY OIL USA, INC., ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE FIFTH, SEVENTH, AND NINTH CIRCUITS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS IN NOS. 16-285 AND 16-300

AND SUPPORTING RESPONDENTS IN NO. 16-307

(1)

INTEREST OF THE UNITED STATES

These cases present the question whether arbitra-

tion agreements that har individual employees from

pursuing work-related claims on a collective or class basis

impermissibly limit the employees’ right under the

National Labor Relations Act (NLRA) to engage in

“concerted activities” in pursuit of their “mutual aid or

protection,” 29 U.S.C. 157, or whether such agreements

instead are enforceable under the Federal Arbitration

Act (FAA), 9 U.S.C. 2. The United States and the

National Labor Relations Board (NLRB or Board) have

responsibility for enforcing the NLRA, and the NLRB

filed a petition for a writ of certiorari in No. 16-307.

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in the

appendix to this brief. App., infra, 1a-13a.

STATEMENT

1. In 1925, Congress enacted the Federal Arbitra-

tion Act, 9 U.S.C. 1 et seq., to “overcome judicial resis-

tance to arbitration.” Buckeye Check Cashing, Inc. v.

Cardegua, 546 U.S. 440, 443 (2006). “The preeminent

concern of Congress in passing the Act was to enforce

private agreements into which parties had entered.”

Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221

(1985). The FAA provides that any “written provision

in any maritime transaction or a contract evidencing a

transaction involving commerce to settle by arbitration

a controversy thereafter arising out of such contract or

transaction * * * shall be valid, irrevocable, and enforce-

able, save upon such grounds as exist at law or in equity

for the revocation of any contract.” 9 U.S.C. 2. Ifa suit

is brought concerning “any issue referable to arbitra-

tion uncer an agreement in writing for such arbitration,

the court in which such suit is pending” must, “on appli-

cation of one of the parties,” stay the proceedings and

refer the matter to arbitration in accordance with the

parties’ agreement. 9 U.S.C. 3.

2. The National Labor Relations Act, 29 U.S.C. 151

et seq., was enacted in 1935 to encourage collective bar-

gaining and to “protect| | the exercise by workers of full

freedom of association, self-organization, and designation

of representatives of their own choosing.” 29 U.S.C. 151.

The NLRA provides that “[e]mployees shall have the

right to self-organization, to form, join, or assist labor

organizations, to bargain collectively through repre-

sentatives of their own choosing, and to engage in other

concerted activities for the purpose of collective bar-

gaining or other mutual aid or protection.” 29 U.S.C.

157. An employer that “interfere|s] with, restrain[s], or

coerce[s] employees in the exercise of the rights guar-

anteed in section 157” has committed “an unfair labor

practice.” 29 U.S.C. 158(a)(1). The National Labor Rela-

tions Board “is empowered * * * to prevent any person

from engaging in any unfair labor practice * * * affect-

ing commerce.” 29 U.S.C. 160(a).

In January 2012, the Board ruled that agreements

between individual employees and their employers that

require arbitration of work-related disputes on a bilat-

eral (rather than collective or classwide) basis interfere

with the employees’ right under Section 157 to engage

in concerted activities, in violation of Section 158(a)(1).

D.R. Horton, Inc., 357 N.L.R.B. 2277, 2278-2283. The

Board determined that, “[j]ust as the substantive right

to engage in concerted activity aimed at improving

wages, hours or working conditions through litigation

or arbitration lies at the core of the rights protected by

Section [157], the prohibition of individual agreements

imposed on employees as a means of requiring that they

waive their right to engage in protected, concerted activ-

ity lies at the core of the prohibitions contained in Sec-

tion [158].” Jd. at 2281.

The Board also expressed the view that its ruling did

not conflict with the FAA. The Board stated that its

rationale was not specific to arbitration, and that the

contractual term at issue “would equally violate the

NLRA if it said nothing about arbitration, but merely

required employees, as a condition of employment,

to agree to pursue any claims in court against the

[employer] solely on an individual basis.” D.R. Horton,

357 N.L.R.B. at 2285. The Board also noted that, under

the FAA’s saving clause, see 9 U.S.C. 2 (requiring

enforcement of arbitration agreements “save upon such

grounds as exist at law or in equity for the revocation of

any contract”), arbitration agreements “remain subject

to the same defenses against enforcement to which

other contracts are subject.” 357 N.L.R.B. at 2284.

On review, the Fifth Circuit rejected the Board’s

analysis. D.R. Horton, Inc. v. NLRB, 787 F.3d 344, 360-

362 (2013). The court held that enforcement of the chal-

lenged arbitration agreement would not “deny a party

any statutory right” because “use of class action proce-

dures *** is not a substantive right” under Section

157. Jd. at 357.' Judge Graves dissented in relevant

part, explaining that he agreed with the Board’s reason-

ing. Id. at 364-365.

3. These consolidated cases involve agreements,

signed by individual employees and their employers, in

' The Fifth Circuit in D.R. Horton agreed with the Board that an

arbitration agreement constitutes an unfair labor practice to the

extent that it prohibits employees from filing unfair-labur-practice

charges with the Board. 737 F.3d at 364.

which the parties have agreed to resolve work-related

disputes through bilateral arbitration.

a. Epic Systems Corporation makes healthcare soft-

ware. 16-285 (Epic) Pet. App. la. In April 2014, it sent

an email to its employees requiring them, as a condition

of employment, to agree to arbitrate all wage-and-hour

claims. The agreement specified that the employees

waived “the right to participate in or receive money or

any other relief from any class, collective, or repre-

sentative proceeding.” /d. at 2a (emphasis omitted).

Jacob Lewis, an employee who had consented to the

arbitration agreement, filed a federal-court suit against

Epic Systems “individually and on behalf of all others

similarly situated.” E’pic Pet. App. 2a, 24a. Lewis alleged

that Epic Systems had violated the Fair Labor Stand-

ards Act of 1938 (FLSA), 29 U.S.C. 201 et seg., and state

law by denying overtime pay to him and other employ-

ees. When Epic Systems moved to dismiss the suit and

to compel bilateral arbitration, Lewis argued that the

arbitration agreement was invalid and unenforceable

under the NLRA. Epic Pet. App. 2a-3a. The district court

agreed with Lewis and denied Epic Systems’ motion.

Id. at 24a-29a.

The Seventh Circuit affirmed. Epic Pet. App. la-23a.

The court concluded that the “text, history, and pur-

pose” of Section 157 show .hat it “should be read broadly

to include resort to representative, joint, collective, or

class legal remedies.” /d. at 5a-6a. The court also stated

that, even if Section 157 were ambiguous, the court

would defer to the Board’s determination that the

NLRA “prohibit[s] employers from making agreements

with individual employees barring access to class or col-

lective remedies.” Jd. at 7a (citing D.R. Horton). The

court rejected Epic Systems’ contention that the FAA

required enforcement of the agreement. /d. at 12a-23a.

The court concluded that, because Epic Systems’

concerted-action waiver is prohibited by the NLRA,

and because illegality is a “ground|| * * * for the revo-

cation of any contract” within the meaning of the FAA’s

saving clause, 9 U.S.C. 2, the waiver is unenforceable

under the FAA’s own terms. Epic Pet. App. 12a-15a.

b. Ernst & Young LLP and its U.S.-based affiliate

(collectively, Ernst & Young) provide accounting ser-

vices. 16-300 (E&Y) Pet. App. 2a, 43a-44a. Ernst &

Young required its employees, as a condition of employ-

ment, to sign a “concerted action waiver” in which they

agreed to arbitrate any legal claims against the com-

pany and to do so “only as individuals and in separate

proceedings.” /d. at 2a (internal quotation marks omit-

ted). Despite signing that agreement, two Ernst &

Young employees filed suit in federal court, on behalf of

themselves and others similarly situated, alleging that

the company had improperly denied them overtime

wages in violation of the F LSA and state law. /bid. The

district court granted Ernst & Young’s motion to com-

pel bilateral arbitration and dismissed the suit. /d. at

43a-67a.

The Ninth Circuit reversed. E&Y Pet. App. la-25a.

The court held that the NLRA gives employees a “right

to pursue work-related legal claims together,” and that

Ernst & Young had violated that right by requiring its

employees to resolve their legal claims in separate arbi-

tration proceedings. /d. at 3a; see id. at 3a-lla. The

court held that the FAA “does not dictate a contrary

result” because that statute requires only that arbitra-

tion contracts be placed “‘on equal footing with all other

contracts,” and the collective-action waiver would con-

travene the NLRA even if it were not contained in an

arbitration agreement. /d. at 12a (quoting DIRECTV,

Inc. v. Imburgia, 136 S. Ct. 463, 468 (2015)) (citation

omitted); see id. at 12a-14a. The court also character-

ized the employees’ right to seek redress collectively as

a non-waivable “substantive federal right,” thereby dis-

tinguishing it from other cases involving “procedural”

rights that may be limited by agreement. /d. at 1l5a-

16a; see id. at 14a-21a.

Judge Ikuta dissented. E&Y Pet. App. 25a-42a. She

explained that, “[iJn determining whether the FAA’s

mandate requiring ‘courts to enforce agreements to ar-

bitrate according to their terms’ has been overridden by

a different federal statute, the Supreme Court requires

a showing that such a federal statute includes an express

‘contrary congressional command.” /d. at 28a (quoting

CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98

(2012)). Because the NLRA does not expressly prohibit

the type of arbitration agreement that is at issue here,

Judge Ikuta would have enforced the agreement as

written. /d. at 34a-38a.

c. Murphy Oil USA, Inc. operates more than 1000

gas stations in 21 States. 16-307 (Murphy Oil) Pet. App.

24a. Murphy Oil required each of its employees and job

applicants to sign a “Binding Arbitration Agreement

and Waiver of Jury Trial” in which the parties waived

their “right to commence, be a party to, or act as a class

member in, any class or collective action” in any judicial

or arbitration proceeding “relating to employment

issues.” /d. at 24a-25a (brackets omitted). In June 2010,

four employees sued Murphy Oil in federal court, alleg-

ing FLSA violations. Invoking the arbitration agree-

ment, Murphy Oil successfully moved to dismiss the col-

lective action and to compel arbitration. /d. at 26a-28a.

One of the employees then filed an unfair-labor-

practice charge with the Board, and the Board’s Gen-

eral Counsel issued an administrative complaint against

Murphy Oil. Murphy Oil Pet. App. 27a. In October

2014, the Board sustained the charge, reaffirming its

prior decision in D.R. Horton and finding that Murphy

Oil had violated the employee’s right under the NLRA

“to engage in collective action.” /d. at 40a (quoting D.R.

Horton, 357 N.L.R.B at 2286); see id. at 17a-89a. The

Board stated that the NLRA creates “a substantive

right to engage in concerted activity,” and that the chal-

lenged arbitration agreement therefore “amounts to a

prospective waiver of a right guaranteed by the NLRA.”

Id. at 43a. The Board also determined that its ruling

did not conflict with the FAA because “the mandatory

arbitration agreement is invalid under Section 2 of the

FAA, the statute’s savings clause,” and because 29 U.S.C.

157 “amounts to a ‘contrary congressional command’

overriding the FAA.” Murphy Oil Pet. App. 44a-46a

(footnote omitted) (quoting CompuCredit, 565 U.S. at

98). Two members of the Board dissented in relevant

yart. See id. at 89a-13la (Member Miscimarra); id. at

131a-208a (Member Johnson).

Murphy Oil filed a petition for review, which the

Fifth Circuit granted in relevant part. Murphy Oil Pet.

App. la-16a. The court adhered to its precedent in D.R.

Horton, holding that an employer may lawfully require

its employees to agree to pursue all employment-related

claims through bilateral arbitration, rather than through

class or collective actions. /d. at 2a, 7a-8a & n.3.

SUMMARY OF ARGUMENT

Under the FAA, agreements to resolve disputes

through arbitration “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.

Courts must enforce agreements to arbitrate federal

claims unless the FAA’s mandate has been overridden

by a contrary congressional command or unless enforc-

ing the parties’ agreement would deprive the plaintiff of

a substantive federal right. Neither of those justifica-

tions for non-enforcement is applicable here. The par-

ties’ agreements, including their prohibition on class-

wide or collective proceedings, should therefore be

enforced according to their terms.

A. The FAA’s strong presumption in favor of enforc-

ing arbitration agreements may yield where “Congress

itself” has overridden that presumption in another stat-

ute. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.

20, 26 (1991) (citation omitted). In mandating enforce-

ment of agreements to arbitrate a variety of federal

statutory claims, the Court has made clear that statu-

tory authorization to pursue class actions in court for

violations of particular federal laws is insufficient to

override the FAA’s directive that agreements to arbi-

trate must be enforced.

Although the FLSA authorizes employees to pursue

collective actions in court, that authorization is not

meaningfully different from similar provisions of other

laws that this Court has found insufficient to override

the FAA’s mandate to enforce arbitration agreements

as written. Presumably for that reason, plaintiffs in

these cases have not argued, and the courts of appeals

that ruled in their favor did not suggest, that the

FLSA—the statute under which plaintiffs’ federal

claims arise—overrides the FAA’s directive that their

arbitration agreements should be enforced. Plaintiffs’

argument thus depends on the proposition that the

NLRA’s recognition of a general right to engage in

“concerted activities,” 29 U.S.C. 157, confers greater

rights to pursue FLSA claims collectively than does the

FLSA itself.

In no other context, however, has Section 157 been

construed to expand the availability of class or collective

remedies beyond those that are authorized by the laws

that directly address those issues. Section 157 would

not, for example, allow employees who do not satisfy the

numerosity and typicality requirements of Federal

Rule of Civil Procedure 23 to pursue a class action

against their employer. Similarly here, Section 157

does not supersede the balance struck in the FAA and

FLSA, or expand the range of circumstances in which

collective litigation can go forward.

Nothing in the NLRA’s legislative history indicates

that Congress intended to bar enforcement of arbitra-

tion agreements like those at issue here. The legislative

record accompanying bills that became the NLRA men-

tioned arbitration only briefly, in stating that Congress

had declined to impose mandatory arbitration or to

make the Board an arbitration agency. And while the

NLRB’s reading of ambiguous NLRA language is enti-

tled to judicial deference, the Board’s analysis of the

interplay between the NLRA and the FAA is not.

B. In mandating enforcement of pre-dispute agree-

ments to arbitrate various federal statutory claims, this

Court has often emphasized that an agreement to arbi-

trate does not entail any surrender of substantive stat-

utory rights. Similarly here, the parties’ arbitration

agreements do not purport to authorize employer con-

duct that would violate the FLSA’s wage-and-hour pro-

visions, and they do not prevent a successful plaintiff

from recovering (through arbitration) the full relief that

a court could award for an F LSA violation.

Nor does enforcement of the arbitration agreements

deprive plaintiffs of any substantive right under the

NLRA. Although Section 157 unquestionably confers

important substantive rights to organize and to engage

in collective bargaining, the arbitration agreements do

not constrain plaintiffs’ exercise of those rights. Even

assuming that the right to utilize collective dispute-

resolution mechanisms for FLSA claims is encom-

passed within Section 157’s residual phrase (“other con-

certed activities”), there is no evident reason for view-

ing it as a substantive NLRA right, when it is clearly a

procedural right under the FLSA itself.

This Court’s decisions in National Licorice Co. v.

NLRB, 309 U.S. 350 (1940), and J.J. Case Co. v. NLRB,

321 U.S. 332 (1944), do not support a different conclu-

sion. In those cases, the Court invalidated agreements

between employers and their employees to resolve

work-related disputes on a bilateral basis. But it did so

because the employers had used the agreements as a

basis for refusing to engage in collective bargaining.

The agreements at issue here do not have any analogous

anti-union purpose.

C. The FAA’s saving clause provides no sound basis

for declining to enforce the parties’ arbitration agree-

ments. The FAA’s strong policy in favor of enforcing

arbitration agreements applies equally to the parties’

right to “specify with whom they choose to arbitrate

their disputes.” Stolt-Nielsen S.A. v. AnimalFeeds

Int'l Corp., 559 U.S. 662, 683 (2010). The Seventh and

Ninth Circuits understood the N LRA to prohibit enforce-

ment of agreements to arbitrate work-related disputes

bilaterally. The courts found that to be the sort of

arbitration-neutral rule that the saving clause preserves

because the rule focuses on the requirement of bilateral

arbitration, rather than on the agreement to arbitrate

as such.

This Court’s decisions make clear, however, that the

saving clause does not preserve rules of contract enforce-

ability that would impede the achievement of the FAA’s

objectives, even when those rules are capable of appli-

cation to contracts other than arbitration agreements.

The Court in AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011), applied that principle to hold that a

state-law rule against enforcement of class-action waivers

contained in certain consumer contracts fell outside the

saving clause. For substantially the same reasons, the

saving clause does not encompass the analogous federal-

law rule that the Seventh and Ninth Circuits derived

from the FAA.

ARGUMENT

WHEN PARTIES AGREE TO ARBITRATE EMPLOY MENT-

RELATED CLAIMS BILATERALLY, THE FAA REQUIRES

ENFORCEMENT OF THOSE AGREEMENTS

The FAA establishes a “liberal federal policy favoring

arbitration,” Moses H. Cone Mem’'l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 24 (1983), the “central” fea-

ture of which is a directive that “private agreements to

arbitrate are enforced according to their terms.” Stolt-

Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662,

682 (2010) (citation omitted). When contracting parties

have agreed to resolve federal claims through bilateral

arbitration, that choice must be honored “unless the

FAA’s mandate has been overridden by a contrary con-

gressional command.” American Express Co. v. Italian

Colors Rest., 133 S. Ct. 2304, 2309 (2013) (/talian Colors)

(citations and internal quotation marks omitted).

Under that approach, the agreements at issue here

must be enforced. Although plaintiffs in these cases

assert causes of action under the FLSA (as well as under

state law), they do not contend that the FLSA itself pre-

cludes enforcement of their agreements to arbitrate

those statutory claims. And neither the text nor the his-

tory of the NLRA suggests that it gives plaintiffs

greater rights to pursue collective litigation than they

can assert under other sources of law like the FLSA.

Enforcement of plaintiffs’ arbitration agreements would

not deprive them of their substantive right under the

FLSA to proper wage-and-hour compensation, or any

procedural right under the NLRA to invoke whatever

class or collective procedures are otherwise available to

them.

In Murphy Oil, this Office previously filed a petition

for a writ of certiorari on behalf of the NLRB, defend-

ing the Board’s view that agreements of the sort at issue

here are unenforceable. After the change in admin-

istration, the Office reconsidered the issue and has

reached the opposite conclusion. Although the Board’s

interpretation of ambiguous NLRA language is ordi-

narily entitled to judicial deference, courts do not defer

to the Board’s conclusion as to the interplay between

the NLRA and other federal statutes. We do not believe

that the Board in its prior unfair-labor-practice pro-

ceedings, or the government’s certiorari petition in

Murphy Oil, gave adequate weight to the congressional

policy favoring enforcement of arbitration agreements

that is reflected in the FAA.

More specifically, the Board’s view that the phrase

“other concerted activities” in 29 U.S.C. 157 encom-

passes participation in collective or class litigation may

reflect a permissible interpretation of that language,

such that an employer might commit an unfair labor

practice by discharging employees who initiated or joined

such suits in accordance with other provisions of law. It

does not follow, however, that Section 157 expands the

vange of circumstances in which such litigation can go

forward, by allowing employees who validly waived

their collective-litigation rights under the FLSA to

escape the consequences of that choice. The Board’s

approach fails to respect the FAA’s directive that arbi-

tration agreements should be enforced unless they run

afoul of arbitration-neutral rules of contract validity.

A. The NLRA Does Not Preclude Enforcement Of An

Agreement To Arbitrate Employees’ Work-Related

Claims Bilaterally

The FAA “reflects the overarching principle that

arbitration is a matter of contract.” /talian Colors,

133 S. Ct. at 2309. When parties agree in writing to

resolve disputes through arbitration, the agreement is

“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. The FAA requires courts to

“rigorously enforce arbitration agreements according

to their terms, including terms that specify with whom

the parties choose to arbitrate their disputes, and the

rules under which that arbitration will be conducted.”

Italian Colors, 133 S. Ct. at 2309 (brackets, citations,

and internal quotation marks omitted). To be sure, “[llike

any statutory directive, the [FAA’s] mandate may be

overridden by a contrary congressional command.”

Shearson/Am. Express Inc. v. McMahon, 482 U.S. 220,

226 (1987). But a party resisting enforcement of an ar-

bitration agreement bears the “burden” of showing

“that Congress intended to preclude” enforcement. /d.

at 227.

I. Bilateral arbitration agreements should be enforced

absent a specific congressional command to the

contrary

a. Although the policy in favor of arbitration applies

to both federal- and state-law claims, see, e.g., Gilmer

v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26

(1991), this Court was initially reluctant to enforce

agreements to arbitrate disputes that involved federal

statutory rights. In Wilko v. Swan, 346 U.S. 427 (1953),

the Court considered whether to enforce the parties’

agreement to arbitrate a claim under the Securities Act

of 1933. The Court observed that the Securities Act

contained provisions “conferring jurisdiction” on fed-

eral district courts, id. at 433 & n.16 (citing 15 U.S.C.

77v(a) (1952)), and declaring “‘void’” any agreement

“to waive compliance with any provision’ of the Securi-

ties Act,” id. at 430 (quoting 15 U.S.C. 77n). Based on

those provisions, and on its skepticism of arbitration

and arbitrators, see id. at 435-436, the Court deter-

mined that “the protective provisions of the Securities

Act require the exercise of judicial direction to fairly

assure their effectiveness,” id. at 437. The Court thus

held that “the intention of Congress concerning the sale

of securities is better carried out by holding invalid such

an agreement for arbitration of issues arising under the

[Securities] Act.” Jd. at 438.

The Wilko Court’s skepticism of arbitration, and its

approach to reconciling the FAA with other federal

statutes, were short-lived. In Scherk v. Alberto-Culver

Co., 417 U.S. 506 (1974), the Court held that the FAA

required enforcement of an agreement to arbitrate a

dispute under the Securities Exchange Act of 1934,

despite a statutory provision giving federal district

courts “exclusive jurisdiction” over such suits. Jd. at 514

(quoting 15 U.S.C. 78aa (1970)); see zd. at 513-521. In

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614 (1985), the Court explicitly acknowl-

edged that the balance it had previously struck in rec-

onciling the FAA with other federal statutes had been

colored by an inappropriate hostility toward arbitra-

tion. Jd. at 626-628. And in Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477 (1989), the

Court overruled Wilko, a step the Court described as

necessary “to correct a seriously erroneous interpreta-

tion of statutory language that would undermine con-

gressional policy.” /d. at 484.

b. In more recent decisions addressing the enforce-

ability of agreements to arbitrate federal statutory

claims, the Court has asked whether “Congress itself,”

in enacting the statute that created the plaintiff’s cause

of action, “evinced an intention to preclude” enforce-

ment of the parties’ agreement. Gilmer, 500 U.S. at 26

(citation emitted). “If such an intention exists, it will be

discoverable in the text of the [statute], its legislative

history, or an ‘inherent conflict’ between arbitration

and the [statute’s] underlying purposes.” /bid. (quoting

McMahon, 482 U.S. at 227). The Court has further

explained that “the burden” rests with the party resist-

ing enforcement of the arbitration agreement “to show

that Congress intended” that result. Jbid. In each of

those cases, after examining relevant text, history, and

purpose, the Court concluded that Congress did not

speak with the necessary specificity. See, e.g., Green

Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 89-92

(2000) (Truth in Lending Act); Gilmer, 500 U.S. at 26-

33 (Age Discrimination in Employment Act of 1967);

Rodriguez de Quijas, 490 U.S. at 479-484 (Securities

Act of 1933); McMahon, 482 U.S. at 227-242 (Securities

Exchange Act of 1934 and Racketeer Influenced and

Corrupt Organizations Act); Mitsubishi Motors, 473 U.S.

at 628-629 (Sherman Act).

CompuCredit Corp. v. Greenwood, 565 U.S. 95 (2012),

is illustrative. There, individuals who had agreed to arbi-

trate their disputes with a credit-card company filed a

class-action complaint in federal court under the Credit

Repair Organizations Act (CROA), 15 U.S.C. 1679 et seq.

See 565 U.S. at 96. When the defendants moved to com-

pel arbitration under the FAA, the plaintiffs invoked

various CROA provisions that required disclosure of a

consumer’s “right to sue” for statutory violations, id. at

99 (quoting 15 U.S.C. 1679c(a)); imposed liability for vio-

lations and “repeated[ly]” used “the terms ‘action,’

‘class action,’ and ‘court,’” id. at 100 (quoting 15 U.S.C.

1679g); and declared that “[aJny waiver by any con-

sumer of * * * any right of the consumer under” CROA

would be “void” and unenforceable, id. at 99 (quoting

15 U.S.C. 1679f(a)).

The Court found those provisions insufficient to dem-

onstrate that Congress intended to preclude enforce-

ment of the plaintiffs’ agreement to arbitrate their stat-

utory claims. The disclosure provision (Section 1679c(a))

created no consumer right other than “the right to receive

the [disclosure] statement” itself. CompuCredit, 565 U.S.

at 99. The liability provision (Section 1679g) was merely

a “guarantee of the legal power to impose liability,” not

a guarantee of access to any particular forum. /d. at 102

(emphasis omitted). And because neither of those pro-

visions entitled a consumer to proceed in court, there

was no “right of the consumer” to which the non-waiver

provision (Section 1679f(a)) might apply. /d. at 101-102

(citation omitted). The Court concluded that CROA was

“silent on whether claims under the Act can proceed in

an arbitral forum,” and it accordingly held that “the FAA

requires the arbitration agreement to be enforced accord-

ing to its terms.” Jd. at 104.

CompuCredit demonstrates the formidable burden a

party bears when seeking to show that “the FAA’s man-

date has been ‘overridden by a contrary congressional

command.” 565 U.S. at 98 (quoting McMahon, 482 U.S.

at 226). One feature of CompuCredit and other deci-

sions is especially notable for present purposes: When

examining text and legislative history, the Court has

looked for evidence that Congress intended to address

arbitration agreements in particular. A statute’s gen-

eral reference to litigation rights, even when combined

with a provision forbidding the waiver of statutory pro-

tections, is insufficient to overcome the FAA’s presump-

tion of enforceability. See, e.g., id. at 99-102; Rodriguez

de Quijas, 490 U.S. at 481-482; McMahon, 482 U.S. at

227-228.

2. The NLRA does not contain a specific congressional

command precluding enforcement of plaintiffs’

bilateral arbitration agreements

a. Plaintiffs in these cases have not argued, and nei-

ther the Seventh nor the Ninth Circuit suggested, that

the FLSA precludes enforcement of the agreements at

issue here. Although the FLSA authorizes suit “by any

one or more employees for and in behalf of himself or

themselves and other employees similarly situated,”

29 U.S.C. 216(b), that provision is no different from

other “utterly commonplace” provisions that “describe

the details of * * * causes of action, including the relief

available, in the context of a court suit,” CompuCredit,

565 U.S. at 100. “(Mlere formulation of the cause of

action in this standard fashion” is not “sufficient to estab-

lish [a] ‘contrary congressional command’ overriding the

FAA.” /d. at 100-101 (quoting McMahon, 482 U.S. at

226); see NLRB vy. Alternative Entm’t, Inc., No. 16-1385,

2017 WL 2297620, at *13 (6th Cir. May 26, 2017) (Sutton,

J., concurring in part and dissenting in part) (“Every

circuit to consider the question has concluded that an

employee may waive the richt to bring a collective action

under the [FLSA].”).

Plaintiffs’ argument thus depends on the premise

that the NLRA imposes greater restrictions on the arbi-

trability of FLSA claims than does the FLSA itself.

Nothing in the NLRA’s text supports that proposition.

Unlike many federal statutes, the NLRA does not spe-

cifically bar enforcement of agreements to arbitrate

statutory claims or declare such agreements to be unlaw-

ful.? Plaintiffs therefore rely on general language in

* See, eg., 7 U.S.C. 26(n)(2) (“No predispute arbitration agree-

ment shall be valid or enforceable, if the agreement requires arbi-

tration of a dispute arising under this section.”); 10 U.S.C. 987(e)(3)

(“It shall be unlawful for any creditor to extend consumer credit to

a covered member or a dependent of such a member with respect to

which *** the creditor requires the borrower to submit to arbi-

tration.”); 12 U.S.C. 5567(d)(2) (“(N Jotwithstanding any other pro-

vision of law, no predispute arbitration agreement shall be valid or

enforceable to the extent that it requires arbitration of a dispute

arising under this section.”); 18 U.S.C. 1514A(e)(2) (“No predispute

arbitration agreement shall be valid or enforceable, if the agree-

ment requires arbitration of a dispute arising under this section.”);

see also, e.g., 15 U.S.C. 1226(a)(2); 15 U.S.C. 1639e(e)(1); 22 U.S.C.

290k-11(a); 22 U.S.C. 1650a(a). In addition, Congress has delegated

authority to preclude arbitration of certain statutory claims to agen-

cies charged with administering the relevant statutes. See 12 U.S.C.

Section 157, which affirms the “Right of employees as

to organization, collective bargaining, etc.,” by provid-

ing as follows:

Employees shall have the right to self-organiza-

tion, to form, join, or assist labor organizations, to

bargain collectively through representatives of their

own choosing, and to engage in other concerted acti-

vities for the purpose of collective bargaining or

other mutual aid or protection, and shall also have

the right to refrain from any or all of such activities.

29 U.S.C. 157.

None of the specific rights enumerated in Section

157 involves the conduct of litigation. And even assum-

ing that the residual phrase—‘“other concerted activi-

ties for the purpose of * * * mutual aid or protection”

—encompasses the filing and prosecution of a collective

or class suit asserting employment-related claims, see

pp. 23-24, infra, that language clearly does not focus on

litigation conduct. Any application that Section 157 may

have to employees’ litigation activities is much less di-

rect and specific than the statutory language that was

at issue in cases like CompuCredit, which the Court

found insufficient to override the FAA. It is also much

less direct and specific than the FLSA provision that

authorizes employees to sue “for and in behalf of * * *

themselves and other employees similarly situated.”

29 U.S.C. 216(b). If that language (in the very statute

5618(b) (“The Bureau, by regulation, may prohibit or impose condi-

tions or limitations on the use of an agreement * * * providing for

arbitration of any future dispute between the parties.”); 15 U.S.C.

780(0) (authorizing the Securities and Exchange Commission to

“prohibit, or impose conditions or limitations on the use of, agrec-

ments” to arbitrate disputes “arising under the Federal securities

laws”).

that creates plaintiffs’ cause of action) is insufficient to

bar enforcement of plaintiffs’ agreement to bilateral arbi-

tration of their FLSA claims, it would be anomalous to

conclude that the NLRA’s more general language has

that effect. See Alternative Entm’t, 2017 WL 2297620,

at *16 (Sutton, J., concurring in part and dissenting in

part).

Neither plaintiffs nor the courts of appeals that ruled

in their favor have identified any other context in which

Section 157 could give employees greater rights to pur-

sue class or collective remedies in court than they would

have under the laws that directly address those issues.

An employee who sought certification of a plaintiff class,

for example, could not invoke Section 157 as a basis for

excusing non-compliance with Rule 23’s numerosity and

commonality requirements. See Fed. R. Civ. P. 23(a)(1)

and (2). Rather than expanding the collective-litigation

rights that employees possess, Section 157 at most pro-

vides employees additional protection when they exer-

cise the collective-litigation rights that other laws con-

fer. See pp. 23-25, infra. And in determining the scope

of the collective-litigation rights that are otherwise avail-

able to plaintiffs in these cases, it is essential to take into

account the FAA as well as the FLSA. Although the

FLSA confers a right to sue, including in a collective

action, plaintiffs waived that right by executing arbitra-

tion agreements that were valid under the terms of the

FAA. Because plaintiffs had no right to pursue collec-

tive actions under the FLSA and FAA, any collective-

litigation right that Section 157 may confer does not

encompass their suits.

The NLRA further provides that an employer who

“interfere[s] with, restrain|s], or coerce|s| employees in

the exercise of the rights guaranteed in section 157” has

committed “an unfair labor practice.” 29 U.S.C. 158(a)(1).

But that provision simply protects the rights set forth

in Section 157, which do not include any collective-

litigation right beyond those conferred by other provi-

sions of law. An employer would not commit an unfair

labor practice by opposing certification of an employee

class on the ground that Rule 23’s requirements were

not satisfied. By the same token, because Section 157

does not clearly displace the rule announced in the

FAA, under which an employee’s agreement to bilateral

arbitration of workplace disputes is “valid, irrevocable,

and enforceable,” 9 U.S.C. 2, an employer does not

“interfere with, restrain, or coerce employees in the exer-

cise of the[ir] rights” by entering into or enforcing such

an agreement, 29 U.S.C. 158(a)(1). Cf. CompuCredit,

565 U.S. at 101 (“But if a cause-of-action provision men-

tioning judicia) enforcement does not create a right to

initial judicial enforcement, the waiver of initial judicial

enforcement is not the waiver of a ‘right of the con-

sumer,’ § 1679f(a).”).

b. The NLRA’s legislative history does not suggest

that Congress intended to preclude agreements to arbi-

trate bilaterally. Congress’s primary goa! in enacting

the statute was to “promot/e] industrial peace by the

recognition of the rights of employees to organize and

bargain collectively.” S. Rep. No. 573, 74th Cong.,

ist Sess. 1 (1935) (Senate Report). Congress focused

on “collective bargaining” in the traditional sense of the

term—ze., “the right of employees to bargain collec-

tively through representatives of their own choosing,”

id. at 12—and sought to remove known obstacles such

as so-called “company unions,” anti-union discrimina-

tion by employers, and employer interference with union

elections. Jd. at 9-14; see H.R. Rep. No. 1147, 74th Cong.,

ist Sess. 8-9 (1935). To the extent arbitration was dis-

cussed at all, it was only briefly, in making clear that

Congress had declined to subject labor disputes to “any

form of compulsory arbitration.” Senate Report 2; see

id. at 8 (“The committee does not believe that the Board

should serve as an arbitration agency.”).

c. Because the question is whether the NLRA con-

tains a specific command from Congress precluding bilat-

eral arbitration, the Board cannot supply the requisite

clarity by gap-filling. The specific rights enumerated

in Section 157 involve self-organization, association

with labor unions, and collective bargaining. Plaintiffs’

asserted right is very different from those, both because

it concerns dispute resolution outside the workplace

(whether in litigation or in arbitration) and because,

unlike the enumerated Section 157 rights, it cannot

plausibly be derived from the NLRA alone but depends

on the FLSA’s authorization of collective actions. Those

differences cast doubt on whether the pursuit of an

FLSA collective action is among the “other concerted

activities for * ** mutual aid or protection” to which

Section 157 refers. See Murphy Oil Pet. App. 100a-

110a (Miscimarra, Member, dissenting in part); id. at

146a-156a (Johnson, Member, dissenting); Alternative

Entm’t, 2017 WL 2297620, at *15-*16 (Sutton, J., con-

curring in part and dissenting in part).

The Board’s interpretation of ambiguous N LRA lan-

guage is entitled to judicial deference, however, and its

reading of Section 157’s residual phrase may govern

in contexts where the FAA does not apply. For exam-

ple, an employer may commit an unfair labor practice

under Section 158 if it discharges an employee for uti-

lizing collective dispute-resolution mechanisms that are

made available by other provisions of law (and that the

employee has not validly agreed to waive). Cf. Hastez,

Inc. v. NLRB, 487 U.S. 556, 565-566 (1978) (“{I}t has

been held [by the Board and lower courts] that the

‘mutual aid or protection’ clause [of Section 157] protects

employees from retaliation by their employers when

they seck to improve working conditions through resort

to administrative and judicial forums.”).* Construing

the NLRA to bar such retaliation would not implicate

the FAA, and it would be unlikely to conflict with any

other federal law.

But the Board is not entitled to deference when it

determines how the NLRA should be harmonized with

other federal statutes—here, the FAA. Cf. Hoffman

Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 144 (2002)

(This Court has “never deferred to the Board’s remedial

preferences where such preferences potentially trench

upon federal statutes and policies unrelated to the

* Contrary to the Board’s decision in Murphy Oil, see Pet. App.

18a, this statement from Hastex does not indicate that employees

have an unwaivable right to pursue collective or class claims. The

statement relates only to employees’ right to be free from “retalia-

tion,” not their right to proceed collectively in litigation even if the

employees have agreed to bilateral arbitration. The Court in Eastex

expressly reserved “the question of what may constitute ‘concerted’

activities in thle] context” of litigation, 437 U.S. at 566 n.15, because

the particular activity at issue there was “distribut[ing] a union

newsletter in nonworking areas of (the employer’s} property during

nonworking time urging employees to support the union,” id. at 558.

The Court in Kastex likewise did not address, and these cases do not

present, the question whether an employee is protected from retal-

iation for invoking collective dispute-resolution mechanisms that he

reasonably, but incorrectly, believes are legally available to him. Cf.

Alternative Entm’t, 2017 WL 2297620, at *16 (Sutton, J., concurring

in part and dissenting in part) (“The employees’ pursuit of collective

procedures may or may not bear fruit, but the pursuit will nonethe-

less be protected from retaliation.”).

NLRA.”). As explained above, the question in these

cases is not whether Section 157 provides additional

protection for employees who invoke collective-action

mechanisms that are available to them under other stat-

utes or procedural rules. At the times they filed suit in

these cases, plaintiffs had no FLSA rights to pursue col-

lective actions because they had waived those rights

through contracts that were “valid, irrevocable, and

enforceable” under the terms of the FAA. 9 U.S.C. 2.

The question in these cases is whether Section 157’s

residual language supersedes that FAA directive and

thereby gives plaintiffs greater rights to pursue collec-

tive litigation than they could assert under the FLSA

itself. The Board’s determination that the NLRA trumps

the FAA in that manner is not entitled to judicial defer-

ence.

B. Enforcing The Parties’ Arbitration Agreements In These

Cases, In Accordance With The FAA, Would Not Deprive

Plaintiffs Of Any Substantive Right Conferred By

Another Federal Statute

In holding that pre-dispute agreements to arbitrate

federal statutory claims are enforceable, this Court has

explained that, “(bly agreeing to arbitrate a statutory

claim, a party does not forgo the substantive rights

afforded by the statute; it only submits to their resolu-

tion in an arbitral, rather than a judicial, forum.”

Mitsubishi Motors, 473 U.S. at 628. The Court has con-

trasted that type of enforceable contract term with a

hypothetical “provision in an arbitration agreement for-

bidding the assertion of certain statutory rights.” /talian

Colors, 133 S. Ct. at 2310. In holding that the NLRA

bars enforcement of the arbitration agreements at issue

here, the Seventh and Ninth Circuits viewed those

agreements as restricting “substantive” rather than

“procedural” rights. See Epic Pet. App. 17a; E&Y Pet.

App. 14a. That analysis is misconceived.

1. Enforcement of the arbitration agreements at issue

here would not deprive plaintiffs of any substantive

right under the FLSA. Most obviously, the agreements

do not purport to authorize the defendant-employers to

engage in conduct inconsistent with the FLSA’s wage-

and-hour provisions. See 29 U.S.C. 206 (minimum

wages); 29 U.S.C. 207 (maximum hours). Nor do the

agreements prevent any employee who has suffered a

statutory violation from obtaining (through arbitration)

the full measure of relief that a court could award.

The Court’s decisions also make clear that, for pur-

poses of determining the enforceability of the arbitra-

tion agreements at issue here, the right to pursue a col-

lective action under 29 U.S.C. 216(b) is a procedural

rather than a substantive FLSA right. A “class-action

waiver merely limits arbitration to the two contracting

partics. It no more eliminates those parties’ right to

pursue their statutory remedy than did federal law

before its adoption of the class action for legal relief in

1938.” Italian Colors, 133 8. Ct. at 2311. An agreement

not to proceed collectively also does not undermine sub-

stantive l'LSA rights, because collective dispute reso-

lution “leaves the parties’ legal rights and duties intact

and the rules of decision unchanged.” Shady Grove

Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S.

393, 408 (2010) (opinion of Sealia, J.).

2. Enforcement of the parties’ arbitration agree-

ments likewise would not deprive plaintiffs of any sub-

stantive right under the NLRA. To be sure, the rights

enumerated in Section 157—i.e., the rights “to self-

organization, to form, join, or assist labor organizations,

land] to bargain collectively through representatives of

their own choosing”—are core substantive rights con-

ferred by the NLRA itself. Plaintiffs in these cases do

not contend, however, and the courts below did not sug-

gest, that the arbitration agreements at issue here

impair plaintiffs’ ability to self-organize, to form or asso-

ciate with labor organizations, or to engage in collective

bargaining.

Section 157’s residual phrase confers on employees

additional rights “to engage in other concerted activi-

ties for the purpose of collective bargaining or other

mutual aid or protection.” 29 U.S.C. 157. Although that

residual language could be read to encompass only sub-

stantive workplace-related rights closely akin to self-

organization or collective bargaining, the Board has

construed it more broadly to cover litigation conduct.

Assuming that is a permissible interpretation, it does

not follow that the right to prosecute a collective action

is a substantive NLRA right, simply because the enu-

merated rights are substantive in nature. Rather, if the

Board’s reading is permissible, it is because the

residual phrase can reasonably be construed to cover

procedural matters as well as substantive ones. There

is no evident reason to treat the right to pursue collec-

tive FLSA litigation as “procedural” under the FLSA

and yet “substantive” under the NLRA.

3. In reaching the contrary conclusion, the Board

incorrectly relied on National Licorice Co. v. NLRB,

309 U.S. 350 (1940), and J.J. Case Co. v. NLRB, 321 U.S.

332 (1944). See Murphy Oil Pet. App. 33a, 44a-45a, 67a.

In National Licorice, an employer whose employees

had recently taken action in favor of a union responded

by requiring all employees to sign contracts “relin-

quish[ing] the right to strike, [and] the right to demand

a closed shop or signed agreement with any union.”

309 U.S. at 355. This Court concluded that the contracts

“by their terms ** * imposed illegal restraints upon

the employees’ rights to organize and bargain collec-

tively guaranteed by” the NLRA. /d. at 360.

In J.J. Case, after an employee union was certified,

the employer refused to bargain with the union, relying

on individual contracts it had signed with its employees.

321 U.S. at 333-334. The Court held that the “[i}ndividual

contracts * * * may not be availed of to defeat or delay

the procedures prescribed by the National Labor Rela-

tions Act looking to collective bargaining, nor to exclude

the contracting employee from a duly ascertained bar-

gaining unit; nor may they be used to forestall bargain-

ing or to limit or condition the terms of the collective

agreement.” /d. at 337. The Court accordingly ordered

the employer to stop using the individual contracts as a

ground for declining to bargain collectively. Jd. at 340-

342.

National Licorice and J./. Case did not establish any

general rule that “employers may not condition employ-

ment on the waiver of employees’ right to take collective

action by seeking class certification or the equivalent.”

Murphy Oil Pet. App. 33a. Rather, both decisions were

highly dependent on a key factual feature that is absent

here. The agreements at issue in those cases “were the

means adopted to eliminate the Union as the collective

bargaining agency of [the] employees.” National Lico-

rice, 309 U.S. at 360 (internal quotation marks omitted);

see J.J. Case, 321 U.S. at 337 (The employer “used [the

agreements| to forestall bargaining or to limit or condi-

tion the terms of the collective agreement.”); see also

Murphy Oil Pet. App. 175a-178a (Johnson, Member,

dissenting).

To be sure, the Court in National Licorice did say

that “[tlhe effect of [the anti-union] clause [in the

employer-created contracts] was to discourage, if not

forbid, any presentation of the discharged employee’s

grievances to appellant through a labor organization or

his chosen representatives, or in any way except per-

sonally.” 309 U.S. at 360. But as the sentence preceding

that one makes clear, the Court’s concern was that such

an agreement would “forestall|] collective bargaining

with respect to discharged employees.” /bid. The pre-

sent cases do not implicate that concern. And the Court

in National Licorice and J.J. Case did not confront a

situation where another federal statute (like the FAA in

the present cases) specifically condoned the employers’

conduct.

C. The FAA’s Saving Clause Provides No Sound Basis

For Declining To Enforce The Parties’ Arbitration

Agreements

The Seventh and Ninth Circuits relied in part on the

FAA’s saving clause, 9 U.S.C. 2, which provides that

written arbitration agreements are valid and enforcea-

ble “save upon such grounds as exist at law or in equity

for the revocation of any contract.” Those courts viewed

“illegality” as one of the generally applicable grounds

for contract revocation referenced in the saving clause.

Epic Pet. App. 15a; E&Y Pet. App. 14a. They construed

the NLRA to “prohibit employers from making agree-

ments with individual employees barring access to class

or collective remedies,” Epic Pet. App. 7a; see E&Y Pet.

App. 9a-lla, and concluded that such agreements are

“illegal, and meet{] the criteria of the FAA’s saving

clause for nonenforcement.” Epic Pet. App. 15a; see

E&Y Pet. App. 14a, 16a-18a; see also Murphy Oil Pet.

App. 44a. That analysis is incorrect.

1. The congressional policy judgment that the FAA

reflects is not simply a preference for an arbitral rather

than judicial forum. The FAA mandates enforcement of

a “written provision in *** acontract * ** to settle

by arbitration a controversy thereafter arising out of

such contract.” 9 U.S.C. 2. In addition to memorializing

the parties’ agreement to arbitrate, the “written provi-

sion” that the FAA declares to be enforceable can and

typically does describe the procedures by which the

arbitration will be conducted. Indeed, a principal virtue

of contracted-for arbitration is that it allows contracting

parties to choose procedures tailored to their own cir-

cumstances. See, e.g., AT&T Mobility LLC v. Concep-

cion, 563 U.S. 333, 344-345 (2011).

The FAA thus reflects Congress’s belief in “the con-

sensual nature of private dispute resolution,” including

the freedom of contracting parties “to structure their

arbitration agreements as they see fit.” Stolt-Nielsen,

559 U.S. at 683 (citation omitted). That freedom encom-

passes the right to “agree on rules under which any

arbitration will proceed,” including a right of contract-

ing parties to “specify with whom they choose to arbi-

trate their disputes.” /bid.; see Italian Colors, 133 S. Ct.

at 2309. Forcing parties to arbitrate collectively or on

a classwide basis, when they have not “agreed to do so,”

is just as inconsistent with the FAA as requiring them

to litigate when they have agreed to arbitrate. Stolt-

Nielsen, 559 U.S. at 684; cf. Litton Fin. Printing Div.

v. NLRB, 501 U.S. 190, 200-201 (1991) (noting “the

strong statutory principle, found in both the language

of the NLRA and its drafting history, of consensual

rather than compulsory arbitration”).

2. The saving clause permits courts to “invalidate an

arbitration agreement based on ‘generally applicable

contract defenses’ like fraud or unconscionability, but

not on legal rules that ‘apply only to arbitration or that

derive their meaning from the fact that an agreement to

arbitrate is at issue.”” Kindred Nursing Ctrs. Ltd. P’ship

v. Clark, No. 16-32 (May 15, 2017), slip op. 4 (quoting

Concepcion, 563 U.S. at 339). The types of generally

applicable rules of contract enforceability that the saving

clause covers are at least predominantly, if not exclu-

sively, the province of state law.‘ This Court has never

applied the saving clause to a case in which another /fed-

eral statute was alleged to render the parties’ arbitration

agreement unenforceable.

To be sure, the saving clause is not explicitly limited to

state-law grounds for contract revocation, and in theory

it would cover a (hypothetical) federal law that barred

enforcement of contracts on a generally applicable

ground like fraud. But the Seventh and Ninth Circuits’

interpretation of the NLRA is not that type of arbitration-

neutral rule. Those courts viewed their rule as being

* State-law defenses were thus at issue in every case in which this

Court has applied the saving clause—or, more commonly, declined

to do so because the defense was found to discriminate against arbi-

tration. See, e.g., Kindred Nursing Ctrs., slip op. 4-7 (invalidating

defense under Kentucky law that discriminated against arbitration);

Preston v. Ferrer, 552 U.S. 346, 354-356 (2008) (California law); Doc-

tor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 688 (1996) (Montana

law); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 269, 281-

282 (1995) (Alabama law); Southland Corp. v. Keating, 465 U.S. 1,

10, 16 & n.11 (1984) (California law). And in considering and reject-

ing various claims that other federal statutes precluded enforce-

ment of arbitration agreements, the Court has never treated the

FAA’s saving clause as relevant to its inquiry. See, e.g., Compu-

Credit, 565 U.S. at 99-104; Randolph, 531 U.S. at 89-92; Gilmer,

500 U.S. at 26-33; Rodriguez de Quiijas, 490 U.S. at 479-484;

McMahon, 482 U.S. at 227-242; Mitsubishi Motors, 473 U.S. at 628-

629; see also pp. 16-17, supra.

arbitration-neutral because it focuses on the agree-

ments’ requirement of bilateral arbitration, rather than

on the obligation to arbitrate as such. The Ninth Circuit

stated that “i]t would equally violate the NLRA for

[an employer] to require its employees to sign a con-

tract requiring the resolution of all work-related dis-

putes in court and in ‘separate proceedings.’” E&Y Pet.

App. 13a. The Seventh Circuit likewise described the

purported flaw in the challenged agreement as its

requirement of bilateral dispute-resolution procedures:

“If Epie’s provision had permitted collective arbitra-

tion, it would not have run afoul of Section [157].” Epic

Pet. App. 17a.

This Court’s decisions make clear, however, that the

FAA’s saving clause does not encompass every rule of

contract enforceability that is capable of application to

contracts other than arbitration agreements. See, e.g.,

Kindred Nursing Ctrs., slip op. 5-6; Concepcion, 563 U.S.

at 341-342. The Court in Concepcion applied that prin-

ciple in the specific context of a state-law rule against

enforcement of class-action waivers contained in certain

consumer contracts. See 563 U.S. at 340 (describing rel-

evant state-law rule). The Court described the ways in

which use of class procedures can be expected to sub-

vert the advantages that ordinarily attend arbitration.

See id. at 348-351. The Court explained that the FAA’s

saving clause should not be construed “to preserve

state-law rules that stand as an obstacle to the accom-

plishment of the FAA’s objectives” because “the act

cannot be held to destroy itself.” Jd. at 343 (citations

omitted). It concluded that the FAA preempted the

state-law rule barring enforcement of class-action waiv-

ers because “[rJequiring the availability of classwide

arbitration interferes with fundamental attributes of

arbitration and thus creates a scheme inconsistent with

the FAA.” Jd. at 344.

Principles of conflict preemption do not directly gov-

ern the interpretive question that is currently before

the Court, which involves the proper harmonization of

two federal statutes. But Concepcion underscores that

the rule adopted by the Seventh and Ninth Circuits sub-

stantially disserves the FAA’s purposes, even though

that rule would not preclude enforcement of all agree-

ments to arbitrate employee claims, and even though

it would also preclude enforcement of hypothetical

employee-employer contracts that mandated individual

suits in court. As the dissenting judge in Ernst & Young

explained, the rule those circuits found to be implicit in

the NLRA “would disproportionately and negatively

impact arbitration agreements by requiring procedures

that ‘interfere with fundamental attributes of arbitra-

tion.’” E&Y Pet. App. 40a (Ikuta, J., dissenting) (brack-

ets omitted) (quoting Concepcion, 563 U.S. at 344). Just

as the saving clause was held not to encompass the

state-law rule at issue in Concepcion, it does not encom-

pass the analogous federal-law rule that the Seventh

and Ninth Circuits derived from the NLRA. See zbid.

Congress remains free to adopt such a rule, of course,

but it must clearly and specifically express its intent to

override the FAA’s general federal policy—which Con-

gress did not do in the NLRA.

CONCLUSION

The judgments of the courts of appeals in Nos.

16-285 and 16-300 should be reversed, and the judgment

of the court of appeals in No. 16-307 should be affirmed.

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

MALCOLM L. STEWART

Deputy Solicitor General

ALLON KEDEM

Assistant to the Solicitor

General

JUNE 2017

APPENDIX

1. 9 U.S.C. 2 provides:

Validity, irrevocability, and enforcement of agreements

to arbitrate

A written provision in any maritime transaction or a

contract evidencing a transaction involving commerce

to settle by arbitration a controversy thereafter arising

out of such contract or transaction, or the refusal to

perform the whole or any part thereof, or an agree-

ment in writing to submit to arbitration an existing

controversy arising out of such a contract, transaction,

or refusal, shall be valid, irrevocable, and enforceable,

save upon such grounds as exist at law or in equity for

the revocation of any contract.

2. 29 U.S.C. 157 provides:

Right of employees as to organization, collective

bargaining, etc.

Employees shall have the right to self-organization,

to form, join, or assist labor organizations, to bargain

collectively through representatives of their own choos-

ing, and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or

protection, and shall also have the right to refrain from

any or all of such activities except to the extent that

such right may be affected by an agreement requiring

membership in a labor organization as a condition of

employment as authorized in section 158(a)(3) of this

title.

(la)

3. 29 U.S.C. 158 provides:

Unfair labor practices

(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employ-

ees in the exercise of the rights guaranteed in sec-

tion 157 of this title;

(2) to dominate or interfere with the formation

or administration of any labor organization or con-

tribute financial or other support to it: Provided,

That subject to rules and regulations made and pub-

lished by the Board pursuant to section 156 of this

title, an employer shall not be prohibited from per-

mitting employees to confer with him during work-

ing hours without loss of time or pay;

(3) by discrimination in regard to hire or tenure

of employment or any term or condition of employ-

ment to encourage or discourage membership in any

labor organization: Provided, That nothing in this

subchapter, or in any other statute of the United

States, shall preclude an employer from making an

agreement with a labor organization (not estab-

lished, maintained, or assisted by any action defined

in this subsection as an unfair labor practice) to

require as a condition of employment membership

therein on or after the thirtieth day following the

beginning of such employment or the effective date

of such agreement, whichever is the later, (i) if such

labor organization is the representative of the employ.

ees as provided in section 159(a) of this title, im the

appropriate collective-bargaining unit covered by such

agreement when made, and (ii) unless followimg am

election held as provided in section 159(e) of this title

within one year preceding the effective date of such

agreement, the Board shall have certified that at

least a majority of the employees eligible to vote in

such election have voted to rescind the authority of

such labor organization to make such an agreement:

Provided further, That no employer shall justify any

discrimination against an employee for nonmember-

ship in a labor organization (A) if he has reasonable

grounds for believing that such membership was not

available to the employee on the same terms and

conditions generally applicable to other members, or

(B) if he has reasonable grounds for believing that

membership was denied or terminated for reasons

other than the failure of the employee to tender

the periodic dues and the initiation fees uniformly

required as a condition of acquiring or retaining

membership;

(4) to discharge or otherwise discriminate against

an employee because he has filed charges or given

testimony under this subchapter;

(5) to refuse to bargain collectively with the rep-

resentatives of his employees, subject to the provi-

sions of section 159(a) of this title.

(b) Unfair labor practices by labor organization

It shall be an unfair labor practice for a labor organ-

ization or its agents—

(1) to restrain or coerce (A) employees in the

exercise of the rights guaranteed in section 157 of

this title: Provided, That this paragraph shall not

impair the right of a labor organization to prescribe

its own rules with respect to the acquisition or reten-

tion of membership therein; or (B) an employer in

the selection of his representatives for the purposes

of collective bargaining or the adjustment of griev-

ances;

(2) to cause or attempt to cause an employer to

discriminate against an employee in violation of sub-

section (a)(3) or to discriminate against an employee

with respect to whom membership in such organiza-

tion has been denied or terminated on some ground

other than his failure to tender the periodic dues and

the initiation fees uniformly required as a condition

of acquiring or retaining membership;

(3) to refuse to bargain collectively with an

employer, provided it is the representative of his

employees subject to the provisions of section 159(a)

of this title;

(4)(i) to engage in, or to induce or encourage any

individual employed by any person engaged in com-

merce or in an industry affecting commerce to engage

in, a strike or a refusal in the course of his employ-

ment to use, manufacture, process, transport, or

otherwise handle or work on any goods, articles,

materials, or commodities or to perform any ser-

vices; or (ii) to threaten, coerce, or restrain any per-

son engaged in commerce or in an industry affecting

commerce, where in either case an object thereof

is—

(A) forcing or requiring any employer or

self-employed person to join any labor or employer

organization or to enter into any agreement which

is prohibited by aubsection (e) of this section;

(B) forcing or requiring any person to cease

using, selling, handling, transporting, or otherwise

dealing in the products of any other producer, pro-

cessor, or manufacturer, or to cease doing busi-

ness with any other person, or forcing or requir-

ing any other employer to recognize or bargain

with a labor organization as the representative of

his employees unless such labor organization has

been certified as the representative of such employ-

ees under the provisions of section 159 of this title:

Provided, That nothing contained in this clause

(B) shall be construed to make unlawful, where

not otherwise unlawful, any primary strike or

primary picketing;

ognize or bargain with a particular labor organi-

zation as the representative of his employees if

another labor organization has been certified as

the representative of such employees under the

provisions of section 159 of this title;

(D) forcing or requiring any employer to assign

particular work to employees in a particular labor

organization or in a particular trade, craft, or class

rather than to employees in another labor organi-

zation or in another trade, craft, or class, unless

such employer is failing to conform to an order or

certification of the Board determining the bar-

gaining representative for employees performing

such work:

Provided, That nothing contained in this subsection

shall be construed to make unlawful a refusal by any

person to enter upon the premises of any employer

(other than his own employer), if the employees of

such employer are engaged in a strike ratified or

approved by a representative of such employees

whom such employer is required to recognize under

this subchapter: Provided further, That for the pur-

poses of this paragraph (4) only, nothing contained in

such paragraph shall be construed to prohibit pub-

licity, other than picketing, for the purpose of truth-

fully advising the public, including consumers and

members of a labor organization, that a product or

products are produced by an employer with whom

the labor organization has a primary dispute and are

distributed by another employer, as long as such

publicity does not have an effect of inducing any indi-

vidual employed by any person other than the pri-

mary employer in the course of his employment to

refuse to pick up, deliver, or transport any goods, or

not to perform any services, at the establishment of

the employer engaged in such distribution;

(5) to require of employees covered by an agree-

ment authorized under subsection (a)(3) of this section

the payment, as a condition precedent to becoming a

member of such organization, of a fee in an amount

which the Board finds excessive or discriminatory

under all the circumstances. In making such a find-

ing, the Board shall consider, among other relevant

factors, the practices and customs of labor organiza-

tions in the particular industry, and the wages cur-

rently paid to the employees affected;

(6) to cause or attempt to cause an employer to

pay or deliver or agree to pay or deliver any money

or other thing of value, in the nature of an exaction,

for services which are not performed or not to be

performed; and

(7) to picket or cause to be picketed, or threaten

to picket or cause to be picketed, any employer

where an object thereof is forcing or requiring an

employer to recognize or bargain with a labor organ-

ization as the representative of his employees, or

forcing or requiring the employees of an employer to

accept or select such labor organization as their col-

lective bargaining representative, unless such labor

organization is currently certified as the representa-

tive of such employees:

(A) where the employer has lawfully recog-

nized in accordance with this subchapter any other

labor organization and a question concerning rep-

resentation may not appropriately be raised under

section 159(c) of this title,

(B) where within the preceding twelve months

a valid election under section 159(c) of this title

has been conducted, or

without a petition under section 159(c) of this title

being filed within a reasonable period of time not

to exceed thirty days from the commencement of

such picketing: Provided, That when such a peti-

tion has been filed the Board shall forthwith, with-

out regard to the provisions of section 159(c)(1) of

this title or the absence of a showing of a substan-

tial interest on the part of the labor organization,

direct an election in such unit as the Board finds

to be appropriate and shall certify the results

thereof: Provided further, That nothing in this

subparagraph (C) shall be construed to prohibit

any picketing or other publicity for the purpose of

truthfully advising the public (including consum-

ers) that an employer does not employ members

of, or have a contract with, a labor organization,

unless an effect of such picketing is to induce any

individual employed by any other person in the

course of his employment, not to pick up, deliver

or transport any goods or not to perform any ser-

vices.

Nothing in this paragraph (7) shall be construed

to permit any act which would otherwise be an unfair

labor practice under this subsection.

force or promise of benefit

The expressing of any views, argument, or opinion, or

the dissemination thereof, whether in written, printed,

graphic, or visual form, shall not constitute or be evi-

dence of an unfair labor practice under any of the pro-

visions of this subchapter, if such expression contains

no threat of reprisal or force or promise of benefit.

(d) Obligation to bargain collectively

lor the purposes of this section, to bargain cullec-

tively is the performance of the mutual obligation of

the employer and the representative of the employees

to meet at reasonabie times and confer in good faith

with respect to wages, hours, and other terms and

conditions of employment, or the negotiation of an

agreement, or any question arising thereunder, and the

execution of a written contract incorporating any

agreement reached if requested by either party, but

such obligation does not compel either party to agrec to

a proposal or require the making of a concession:

Provided, That where there is in effect a collective-

hargaining contract covering employees in an industry

affecting commerce, the duty to bargain collectively

shall also mean that no party to such contract shall

terminate or modify such contract, unless the party

desiring such termination or modification—

(1) serves a written notice upon the other party

to the contract of the proposed termination or modi-

fication sixty days prior to the expiration date there-

of, or in the event such contract contains no expira-

tion date, sixty days prior to the time it is proposed

to make such termination or modification;

(2) offers to meet and confer with the other party

for the purpose of negotiating a new contract or a

contract containing the proposed modifications;

(3) notifies the Federal Mediation and Concilia-

tion Service within thirty days after such notice of

the existence of a dispute, and simultaneously

therewith notifies any State or Territorial agency

established to mediate and conciliate disputes within

the State or Territory where the dispute occurred,

provided no agreement has been reached by that

time; and

(4) continues in iull force and effect, without

resorting to strike or lock-out, all the terms and

conditions of the existing contract for a period of

sixty days after such notice is given or until the expi-

ration date of such contract, whichever occurs later:

The duties imposed upon employers, employees, and

labor organizations by paragraphs (2) to (4) of this sub-

section shall become inapplicable upon an intervening

certification of the Board, under which the labor organ-

ization or individual, which is a party to the contract,

has been superseded as or ceased to be the representa-

10a

tive of the employees subject to the provisions of sec-

tion 159(a) of this title, and the duties so imposed shall

not be construed as requiring either party to discuss or

agree to any modification of the terms and conditions

contained in a contract for a fixed period, if such modi-

fication is to become effective before such terms and

conditions can be reopened under the provisions of the

contract. Any employee who engages in a strike within

any notice period specified in this subsection, or who

engages in any strike within the appropriate period

specified in subsection (g) of this section, shall lose his

status as an employee of the employer engaged in the

particular labor dispute, for the purposes of sections

158, 159, and 160 of this title, but such loss of status for

such employee shall terminate if and when he is

reemployed by such employer. Whenever the collec-

tive bargaining involves employees of a health care

institution, the provisions of this subsection shall be

modified as follows:

(A) The notice of paragraph (1) of this subsection

shall be ninety days; the notice of paragraph (3) of

this subsection shall be sixty days; and the contract

period of paragraph (4) of this subsection shall be

ninety days.

(B) Where the bargaining is for an initial agree-

ment following certification or recognition, at least

thirty days' notice of the existence of a dispute shall

be given by the labor organization to the agencies

set forth in paragraph (3) of this subsection.

tion and Conciliation Service under either clause (A)

or (B) of this sentence, the Service shall promptly

communicate with the parties and use its best efforts,

lla

by mediation and conciliation, to bring them to

agreement. The parties shall participate fully and

promptly in such meetings as may be undertaken by

the Service for the purpose of aiding in a settlement

of the dispute.

(e) Enforceability of contract or agreement to boycott

any other employer; exception

It shall be an unfair labor practice for any labor

organization and any employer to enter into any con-

tract or agreement, express or implied, whereby such

employer ceases or refrains or agrees to cease or refrain

from handling, using, selling, transporting or otherwise

dealing in any of the products of any other employer, or

to cease doing business with any other person, and any

contract or agreement entered into heretofore or here-

after containing such an agreement shall be to such

extent unenforcible' and void: Provided, That noth-

ing in this subsection shall apply to an agreement

between a labor organization and an employer in the

construction industry relating to the contracting or

subcontracting of work to be done at the site of the

construction, alteration, painting, or repair of a build-

ing, structure, or other work: Provided further, That

for the purposes of this subsection and subsection

(b)(4)(B) of this section the terms “any employer”, “any

person engaged in commerce or an industry affecting

commerce”, and “any person” when used in relation to

the terms “any other producer, processor, or manufac-

turer”, “any other employer”, or “any other person”

shall not include persons in the relation of a jobber,

manufacturer, contractor, or subcontractor working on

' So in original. Probably should be “unenforceable”.

lZa

the goods or premises of the jobber or manufacturer or

performing parts of an integrated process of produc-

tion in the apparel and clothing industry: Provided

further, That nothing in this subchapter shall prohibit

the enforcement of any agreement which is within the

foregoing exception.

(f) Agreement covering employees in the building and

construction industry

It shall not be an unfair labor practice under subsec-

tions (a) and (b) of this section for an employer

engaged primarily in the building and construction

industry to make an agreement covering employees

engaged (or who, upon their employment, will be

engaged) in the building and construction industry with

a labor organization of which building and construction

employees are members (not established, maintained,

or assisted by any action defined in subsection (a) of

this section as an unfair labor practice) because (1) the

majority status of such labor organization has not been

established under the provisions of section 159 of this

title prior to the making of such agreement, or (2) such

agreement requires as a condition of employment,

membership in such labor organization after the sev-

enth day following the beginning of such employment

or the effective date of the agreement, whichever is

later, or (3) such agreement requires the employer to

notify such labor organization of opportunities for

employment with such employer, or gives such labor

organization an opportunity to refer qualified appli-

cants for such employment, or (4) such agreement

specifies minimum training or experience qualifications

for employment or provides for priority in opportuni-

ties for employment based upon length of service with

13a

such employer, in the industry or in the particular

geographical area: Provided, That nothing in this

subsection shall set aside the final proviso to subsection

(a)(3): Provided further, That any agreement which

would be invalid, but for clause (1) of this subsection,

shall not be a bar to a petition filed pursuant to section

159(c) or 159(e) of this title.

(g) Notification of intention to strike or picket at any

health care institution

A labor organization before engaging in any strike,

picketing, or other concerted refusal to work at any

health care institution shall, not less than ten days

prior to such action, notify the institution in writing

and the Federal Mediation and Conciliation Service of

that intention, except that in the case of bargaining for

an initial agreement following certification or recogni-

tion the notice required by this subsection shall not be

given until the expiration of the period specified in

clause (B) of the last sentence of subsection (d) of this

section. The notice shall state the date and time that

such action will commence. The notice, once given, may

be extended by the written agreement of both parties.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.