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

at ot

AUG 16 2017

LICE OF THE or egy:

CWA Us

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

‘

'

IN THE

Supreme Court of the United States

Epic SYSTEMS CORPORATION,

Petitioner,

Vv.

JACOB LEWIS,

Respondent.

ERNST & YOUNG LLP, ET AL.,

Petitioners,

Vv.

STEPHEN MORRIS, ET AL.,

Respondents.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

Vv.

MURPHY O1L USA, INC., ET AL.,

Respondents.

On Writs of Certiorari

to the United States Courts of Appeals

for the Fifth, Seventh, and Ninth Circuits

BRIEF OF LABOR LAW PROFESSORS AS

AMICI CURIAE SUPPORTING RESPONDENTS IN

Nos. 16-285 & 16-300 AND PETITIONER IN No. 16-307

MATTHEW W. FINKIN DAVID C. FREDERICK

UNIVERSITY OF ILLINOIS Counsel of Record

COLLEGE OF LAW JEREMY S.B. NEWMAN

504 East Pennsylvania Ave. BENJAMIN ID. MARGO

Champaign, Illinois 61820 KELLOGG, HANSEN, TODD,

(217) 383-3884 FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W., Suite 400

Washington, D.C. 20036

(202) 326-7900

August 16, 2017 (dfrederick@kellogghansen.com)

TABLE OF CONTENTS

Page

Ne Fe CI vr sccscctinsccscascescecesiscscssoeses ii

INTEREST OF AMICI CURITAE.,....0........cccccceeeeeeee eee l

SUMMARY OF ARGUMENT ....................cc:ececceeeeeess 3

TET daisencictsisintataiaidntasnemunnieapenionatéaamninidlaneinsid 5

1. NORRIS-LAGUARDIA BARS ENFORCE-

MENT OF CONTRACTS THAT PREVENT

EMPLOYEES FROM BRINGING JOINT

OR COLLECTIVE LEGAL CLAIMS TO

ENFORCE WORKPLACE RIGHTSG.................. 5

A. The Plain Language Of Sections 2 And 3

Of Norris-LaGuardia Prohibits Enforce-

ment Of Contractual Restrictions On

Concerted Legal Claims By Employees ....... 6

B. The History Of Norris-LaGuardia Shows

That Congress Intended To Render

Unenforceable Contracts Restricting

Any Concerted Activities To Advance

Employee Interests, Including Joint

IIL, icrinsitntcniaicnaneptsinablenstamebbtnnsinibinios 12

Enforcement Of Waivers Of Concerted

Legal Claims Offends The Policy Of

ESSE 8 LD 15

D. The Retail Litigation Center Miscon-

strues The Norris-LaGuardia Act And

I i Nis sisncnsclichangsiedidedindsntetinncs 18

Il. THE FAA DOES NOT MANDATE

ENFORCEMENT OF CONTRACTS

THAT ARE UNENFORCEABLE UNDER

Pee UIIOS sciecccccccsscescevepniettssnncenton 20

eo

i

A. The FAA’s Saving Clause Exempts Con-

tracts That Violate Norris-LaGuardia

fe SERRE RSE S A RSA 20

B. Insofar As The FAA Is Read To Require

Enforcement Of Employment Contracts

Mandating Bilateral Arbitration, It

Would Be Superseded By Norris-

REESE SS a ea Re TEN ee: 22

C. The FAA Does Not Take Precedence

Over Norris-LaGuardia ...................0.0.0.000.. 24

NG isccchivsisncinnneisidintbepemicniinninntantasdetintaiemratbial 28

ili

TABLE OF AUTHORITIES

CASES

Adair v. United States, 208 U.S. 161 (1908)............ 12

Altex Ready Mixed Concrete Corp. v. NLRB,

542 F.2d 296 (6th Cir. 1976) .................ccccccessseeee0e 9

Anderson v. Pacific Coast S.S. Co., 225 U.S. 187

AERTS TD RN ee PE er Ie 24

AT&T Mobility LLC v. Concepcion, 563 U.S. 333

STII ialhsdccnninstdedininsnbnpesciaduiditiedtinctaancistiigiieiiesl 21, 22

Boys Markets, Inc. v. Retail Clerk’s Union,

Local 770, 398 U.S. 235 (1970) ...........cccccccecceeeees 18

Brady v. NFL, 644 F.3d 661 (8th Cir. 2011).............. 4

Brotherhood of R.R. Trainmen v. Jacksonville

Terminal Co., 394 U.S. 369 (1969)..................00.. 16

Bulova Watch Co. v. United States, 365 U.S. 753

ERA ESS SS a8 I td ie pelea Se ee 24

Burlington N.R.R. Co. v. Brotherhood of Maint.

of Way Emps., 481 U.S. 429 (1987)...............0006.. 16

Circuit City Stores, Inc. v. Adams, 532 U.S. 105

i a a a 27

— — v. Greenwood, 565 U.S. 95

(2012) .. sninintptnniangainiidduniionin’ ; Giietiad ae

Consumer Prod. pee Comm'n v. GTE = Sylve.

— FS gt ) | eee 8

Coppage v. Kansas, 236 U.S. 1 (1915)...................... 12

Discover Bank v. Superior Court, 113 P.3d 1100

ie 22

Eastex, Inc. v. NLRB, 437 U.S. 556 (1978)....3, 9, 11, 17

iv

Finley v. United States, 490 U.S. 545 (1989) ........... 24

Fourco Glass Co. v. Transmirra Prods. Corp.,

I cceeaitelionsiidnniniets 24

Hitchman Coal & Coke Co. v. Mitchell,

I a nated 12,13

International Org., United Mine Workers v. Red

Jacket Consol. Coal & Coke Co., 18 F.2d 839

STII TEI iccsctinctinncntigdasmeiibesulieaaniaindaiiniabanis 14-15

Iskanian v. CLS Transp. Los Angeles, LLC,

59 Cal. 4th 348 (2014), cert. denied, 135 S.

FE SURES a ee aCe 12

Lawson v. FMR LLC, 1348. Ct. 1158 (2014) ............ 8

Leviton Mfg. Co. v. NLRB, 486 F.2d 686

EER eee saisai SASK ee Cane aan eae 9

Lincoln Fed. Labor Union No. 19129 v. North-

western Iron & Metal Co., 335 U.S. 525

EET ASD lt Cs RS Te OTM eS Barn eve 19

Lochner v. New York, 198 U.S. 45 (1905)............ 12, 16

Mackey v. Lanier Collection Agency & Serv.,

we EE 7

Mohave Elec. Coop., Inc. v. NLRB, 206 F.3d

Fe cocieeunsetentniinn 9

Morton v. Mancari, 417 U.S. 535 (1974).................. 24

NLRB v. Alternative Entm’t, Inc., 858 F.3d 393

RE AE RRR ae ee i)

Posadas v. National City Bank of New York,

I, a Eo snincsnictntccnsbesteininnescmnbeiiedice 23, 24

Prima Paint Corp. v. Flood & Conklin Mfg. Co.,

te RL EE a 8 SC ETE 4, 21

v

Shearson/American Express, Inc. v. McMahon,

IIE sensi cccnncesnsusativeaioemaieiobnenceoes 25

Textile Workers Union v. Lincoln Mills of

Alabama, 353 U.S. 448 (1957) ..........cccccccceeeeeeeees 17

United States v. Welden, 377 U.S. 95 (1964) ........... 24

ADMINISTRATIVE DECISIONS

D.R. Horton, Inc., In re, 357 NLRB 2277 (2012),

enf. granted in part, revd in part, D.R.

Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir.

CONSTITUTION, STATUTES, AND RULES

ee a deeinadeineaininadedpnei 17

Age Discrimination in Employment Act of 1967,

EE IE MRIS scscneereinistvechussencecesinneoveats 26

Americans with Disabilities Act of 1990,

ae IEE IIIS | secscccnitanctecedsniotoseninisnsonss 26

Civil Rights Act of 1964, tit. VII, 42 U.S.C.

SiN. clic caddtinadnpicisndinpennpbiibseaeinenebiobeneegaabee 26

Fair Labor Standards Act of 1938, 29 U.S.C.

PIII chs icninaicislenithiieltchd delnien leadiniisunietiiontnigiaidibuanebeiate 8

Federal Arbitration Act, 9 U.S.C. § 1 et seq. ....1, 4, 18,

20, 21, 22,

23, 24, 25, 26, 27

fm! 8 | ERE ere seeneorrenerr 4, 20, 23, 25

vi

Labor Management Relations Act, 1947,

ID OIE TI oc ncesnsvepesscnensnsscennsnsundesenes 18

National Labor Relations Act, 29 U.S.C. § 151

GIN Scuiansccbebencteunniaseissenieshscmnecainctieenecsegens 1, 2, 5, 9,

10, 11, 24

ee a ..cniiesooubismndionavesions 9,11

I 0 I saniinccsnecniemsininieanintnisianseteaiont 11

Norris-LaGuardia Act, 29 U.S.C. § 101 et seg. ...passim

ER Gi S| | eee 3, 4, 5, 6, 7, 8, 11,

15, 17, 18, 19, 21, 25, 26

FR ft te) eee 3, 4, 5, 6, 7, 11, 12,

17, 18, 19, 21, 23, 25

Oe OF rile OF Wi icaetececcsccsecsss stvecnssoceesess 10, 11, 20

§ 4(a), 29 U.S.C. § 104(a).............cccceceeeeeeeeeeeeeees 10

§ 4(b), 29 U.S.C. § 104(D)............ccccccecceeeccessseneenes 10

§ 4(d), 29 U.S.C. § 104(d)....0000. eee eee 10, 20

a Se EES OF BIE Decicocssosceocseccesscasensscesuscoess 10

Oe IE Tt ooo cncincunscenesinnenionisansdesehebiegnneds 17

SR Se I, TE Tic nic oncesstnnnnseciassceuntineteoseesiuoniie 22

5 % 2:5 |) & Seer 4, 18, 23, 25

I INK TED siniciinlnicinacditsnuiiaiaisiniennatniasncatniansoulentedh 10

Sup. Ct. R.:

ESET ee SO Pe EE Se SE aN Par ene 1

BD Edt ccsvncidiccsqatabetenavtensiieiataiatutneneniiassemantintnn 1

vii

LEGISLATIVE MATERIALS

72 Cong. Rec.:

Se IN Wa: MEI dnndscs-c ccescussnndnndcedncssccoons 15

i I TEE: TRTIET intsinnccibedinatnanstndnsedbensebssenenes 14

CS 5 EGR ear eseD Onn syneEene a 15

a nd oc nae nnisinnowaannsienacasoonnonees 17

IY iy SIE Ldiienntccntesaicsesbaddbuaiinaidrencanen 15

75 Cong. Rec.:

i EN SIE onceicnccenesssreecnsessssnvisieesnniies 27

eS ES een en 16, 28

Ss Bs I acca cu en cedupabucecaiecciavses 13

Bs BL DON VIR UE CEUIED ccccncscccscsnccccccscceseseue 13, 14, 16

ee eI b sncicincnsnesiciccsctssnsensesenseonsys 10

U.S. COAL COMM’N, S. Doc. No. 68-195, REPORT

OF THE UNITED STATES COAL COMM’N, pt. 1

GENIN ich) scisdanencebiiesshininibincnnbddumsagaieadsutintadeniipstdasants 13

OTHER MATERIALS

IRVING BERNSTEIN, THE LEAN YEARS: A HISTORY

OF THE AMERICAN WORKER, 1920-1933 (1969) ...... 13

BLACK’S LAW DICTIONARY (2d ed. 1910)..................... 8

BLACK’S LAW DICTIONARY (3d ed. 1933) ..................... 8

Daniel Ernst, The Yellow-Dog Contract and

Liberal Reform, 1917-1932, 30 Lab. Hist.

TI Ss indicn cis cibcisususicadscanmcee deumiadimaeiniadsaiebes 16

Vill

Matthew W. Finkin, The Meaning and Contem-

porary Vitality of the Norris-LaGuardia Act,

Mle Ns OP I ve ceccnnscsccmsccdnsccsnsenseceees 1,12

Catherine L. Fisk, Collective Actions and Join-

der of Parties in Arbitration: Implications of

DR Horton and Concepcion, 35 Berkeley J.

NG GE MG iit, BU IID scence cccctnescnvccsasesoconscconce 1

Julius Getman & Dan Getman, Winning the

FLSA Battle: How Corporations Use Arbi-

tration Clauses to Avoid Judges, Juries,

Plaintiffs, and Laws, 86 St. John’s L. Rev.

i s cpebusibeeeees 1

Ann C. Hodges, Can Compulsory Arbitration Be

Reconciled with Section 7 Rights?, 38 Wake

PPS Bs Bes BP CD cececvccccscccsncccccccccsccsscosccece 1

DANIEL JACOBY, LABORING FOR FREEDOM:

A NEW LOOK AT THE HISTORY OF LABOR IN

i csivaionesesi 13

Restatement (First) of Contracts (1932).................. 20

Restatement (Second) of Contracts (1981)............... 20

ANTONIN SCALIA & BRYAN A. GARNER, READING

LAW: THE INTERPRETATION OF LEGAL TEXTS

a niahuieasabiane 26

JOEL I. SEIDMAN, THE YELLOW DOG CONTRACT

(a RE AE ee a Fe Ae ae 13, 14

Katherine V.W. Stone, Procedure, Substance,

and Power: Collective Litigation and Arbi-

tration Under the Labor Law, 61 UCLA L.

a sesueninonanumnenaananatioas l

ix

Charles A. Sullivan & Timothy P. Glynn,

Horton Hatches the Egg: Concerted Action

Includes Concerted Dispute Resolution, 64

es I icciincstonsicitbidadieininbeniesendensecsin 1

WEBSTER’S NEW INTERNATIONAL DICTIONARY OF

THE ENGLISH LANGUAGE (2d ed. 1934)............... 8-9

INTEREST OF AMICI CURIAE'

Amici are law professors long engaged in the study

and teaching of labor law. All of them have published

articles about the relationship between federal labor

law — in particular, the Norris-LaGuardia Act of 1932

(“Norris-LaGuardia”) and the National Labor Rela-

tions Act of 1935 (““NLRA”) — and the Federal Arbitra-

tion Act of 1925 (“FAA”).2

Amici’s interest here derives from their responsibil-

ities as law professors. Amici teach students to under-

stand the law as a system faithful to professional

standards of analytical care, and they emphasize that

statutes must be read with close attention to their

texts, histories, and policies to achieve their legislated

ends. Amici believe that fidelity to those standards

compels the conclusion that Norris-LaGuardia precludes

1 Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or entity

other than amici or their counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

Pursuant to Rule 37.3(a), counsel for amici also represent that

all parties have consented to the filing of this brief by submitting

letters granting blanket consent to the filing of amicus briefs.

2 See Matthew W. Finkin, The Meaning and Contemporary

Vitality of the Norris-LaGuardia Act, 93 Neb. L. Rev. 6 (2014);

Catherine L. Fisk, Collective Actions and Joinder of Parties

in Arbitration: Implications of DR Horton and Concepcion,

35 Berkeley J. Emp. & Lab. L. 175 (2014); Julius Getman & Dan

Getman, Winning the FLSA Battle: How Corporations Use Arbi-

tration Clauses to Avoid Judges, Juries, Plaintiffs, and Laws,

86 St. John’s L. Rev. 447 (2012); Ann C. Hodges, Can Compulsory

Arbitration Be Reconciled with Section 7 Rights?, 38 Wake Forest

L. Rev. 173 (2003); Katherine V.W. Stone, Procedure, Substance,

and Power: Collective Litigation and Arbitration Under the

Labor Law, 61 UCLA L. Rev. Disc. 164 (2013); Charles A. Sullivan

& Timothy P. Glynn, Horton Hatches the Egg: Concerted Action

Includes Concerted Dispute Resolution, 64 Ala. L. Rev. 1013 (2013).

2

judicial enforcement of the provisions in the employ-

ment arbitration agreements of petitioners Epic Sys-

tems Corpora‘ion, Ernst & Young LLP and Ernst &

Young U.S. LLP, and respondent Murphy Oil USA,

Inc. (collectively, “Employers”) that prohibit their

employees from pursuing adjudication or arbitration

of workplace claims on a joint, class, collective, or

representative action basis.*

Amici are listed below in alphabetical order. Their

institutional affiliations are provided for identifica-

tion purposes only:

Matthew W. Finkin, Albert J. Harno and Edward W.

Cleary Chair in Law, University of [Illinois College of

Law;

Catherine Fisk, Barbara Nachtrieb Armstrong Pro-

fessor of Law, University of California, Berkeley Law;

Julius G. Getman, Earl E. Sheffield Regents Chair

Emeritus, University of Texas School of Law;

Timothy P. Glynn, Senior Associate Dean and

Andrew J. Catania Endowed Professor of Law, Seton

Hall University School of Law;

Ann C. Hodges, Professor of Law, University of

Richmond;

Katherine V.W. Stone, Arjay and Frances Fearing

Miller Distinguished Professor of Law, University of

California, Los Angeles School of Law; and

Charles A. Sullivan, Senior Associate Dean and Pro-

fessor of Law, Seton Hall University School of Law.

3 Amici also agree with petitioner National Labor Relations

Board (“NLRB”) and respondents Sheila Hobson, Jacob Lewis,

Stephen Morris, and Kelly McDaniel (collectively, “Employees”)

that these prohibitions on concerted action are unlawful and un-

enforceable under the NLRA. Because the NLRB’s and Employ-

ees’ briefs fully address the NLRA, amici focus exclusively on

Norris-LaGuardia.

3

SUMMARY OF ARGUMENT

The Norris-LaGuardia Act of 1932, 29 U.S.C. § 101

et seq. (“Norris-LaGuardia” or “the Act”), bars enforce-

ment of contracts that forbid employees from engaging

in concerted activities for their mutual aid or protec-

tion, including concerted pursuit of legal claims.

Section 2 of the Act declares as “the public policy of

the United States” that “the individual unorganized

worker . . . shall be free from the interference, restraint,

or coercion of employers .. . in other concerted activi-

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

Id. § 102. Section 3 makes such contracts, commonly

known as “yellow-dog contracts,” unenforceable in

federal court. Id. § 103.

The plain language of Norris-LaGuardia renders

unenforceable the specific type of contract at issue in

these cases — employment agreements prospectively

waiving the right to act in concert with fellow employ-

ees to pursue legal claims to vindicate workplace

rights. See Eastex, Inc. v. NLRB, 437 U.S. 556, 565-

66 (1978). The contract clauses at issue purport to

waive employees’ rights to engage in certain concerted

activity such as bringing “any group, class or collective

action claim in arbitration or any other forum,”

Epic/Murphy Oil JA11, “any class, collective, or repre-

sentative proceeding,” Epic Pet. App. 3la, or “[ajll

claims, controversies or other disputes between

[Employers] and an [e]mployee that could otherwise

be resc ved by a court,” Ernst & Young Pet. Br. 7 (first

and third alteration in original). Under these provi-

sions, employment disputes can be brought only

through bilateral arbitration between the employee

and employer; these contracts purport to forbid

concerted pursuit of legal claims by employees.

4

Beyond the plain text, amici’s historical research

confirms that the contracts at issue here fall into the

broad category of contractual restrictions on concerted

employee activities that Congress targeted in the Act.

A wide variety of yellow-dog contracts were enforced

before Norris-LaGuardia, and Congress intended to

bar all of them from enforcement, not just contracts

restricting unionization.

The Federal Arbitration Act, 9 U.S.C. § 1 et seg.

(“FAA”), does not save these contracts from Norris-

LaGuardia’s enforcement bar. Sections 2 and 3 of

Norris-LaGuardia render unenforceable contracts

that restrain employees’ engagement in concerted

activities for their mutual aid or protection by limiting

them to individual claims to vindicate workplace

rights. The FAA, as Employers interpret it, mandates

the enforcement of the very same yellow-dog contracts

because the restriction on concerted activities is

paired with an arbitration requirement. If Employers’

interpretation of the FAA were correct, there would

be an irreconcilable conflict between the two statutes,

and the later-enacted Norris-LaGuardia Act would

prevail.

Further, Norris-LaGuardia’s express terms dictate

what must be done should any other federal law

appear to mandate actions contrary to the policy it

announces. It provides that “[a]ll acts and parts of

acts in conflict with the provisions of this chapter are

repealed.” 29 U.S.C. § 115.

In fact, there is no conflict. The FAA’s saving

clause, 9 U.S.C. § 2, exempts from the FAA contracts

unenforceable under general contract defenses, such

as illegality or voidness for conflict with public policy.

See, e.g., Prima Paint Corp. v. Flood & Conklin Mfg.

Co., 388 U.S. 395, 404 n.12 (1967) (FAA “makef[s]

arbitration agreements as enforceable as other

5

contracts, but not more so”). The concerted-action

waivers in question are unenforceable under generally

applicable contract defenses because they violate “the

public policy of the United States,” 29 U.S.C. § 102,

and are made unenforceable by statute, id. § 103.

Employers do not contest these points. In fact, they

ignore Norris-LaGuardia almost entirely. But the

Act is dispositive; it squarely addresses the type of

concerted-action waivers at issue in these cases and

makes them unenforceable.

ARGUMENT

I. NORRIS-LAGUARDIA BARS ENFORCE-

MENT OF CONTRACTS THAT PREVENT

EMPLOYEES FROM BRINGING JOINT OR

COLLECTIVE LEGAL CLAIMS TO ENFORCE

WORKPLACE RIGHTS

Though ignored almost completely by Employers

and their amici, Norris-LaGuardia is fatal to their

arguments. Norris-LaGuardia speaks to the heart of

these cases — contracts imposed by employers prospec-

tively waiving the concerted-action rights recognized

by federal] statutes. Norris-LaGuardia declares such

contracts to violate the public policy of the United

States and makes them unenforceable in federal

court.‘

* Although the courts of appeals did not engage with Norris-

LaGuardia in the decisions below, the NLRB recognized that it

“aimed to prevent employers from imposing contracts on individ-

ual employees requiring that they agree to forego engaging in

concerted activity.” Jn re D.R. Horton, Inc., 357 NLRB 2277, 2281

(2012), enf. granted in part, rev'd in part, D.R. Horton, Inc. v.

NLRB, 737 F.3d 344 (5th Cir. 2013). Indeed, Norris-LaGuardia

provided the textual grounding for the later-enacted NLRA, which

“built upon and expanded the policies reflected in the Norris-

LaGuardia Act.” Id. at 2282.

6

A. The Plain Language Of Sections 2 And 3 Of

Norris-LaGuardia Prohibits Enforcement

Of Contractual Restrictions On Concerted

Legal Claims By Employees

Read together, sections 2 and 3 of Norris-LaGuardia

preclude judicial enforcement of the concerted-action

waivers at issue in these cases. Section 2 establishes

a public policy against any interference with workers’

“other concerted activities for the purrose of . . . other

mutual aid or protection,” which plainly covers joint,

class, collective, or representative action to vindicate

workers’ rights. Section 3 plainly states that contracts

violating that policy are unenforceable.

Section 2 declares as “the public policy of the United

States” that:

Whereas under prevailing economic conditions,

. the individual unorganized worker is

commonly helpless to exercise actual liberty of

contract ..., wherefore, ... it is necessary...

that he shall be free from the interference,

restraint, or coercion of employers of labor,

or their agents, in the designation of such repre-

sentatives or in self-organization or in other con-

certed activities for the purpose of collective

bargaining or other mutual aid or protection;

therefore, the following definitions of, and limita-

tions upon, the jurisdiction and authority of the

courts of the United States are enacted.

29 U.S.C. § 102 (emphases added). Any contract with

“employers of labor, or their agents,” that constitutes

“Interference, restraint, or coercion” of an “individual

unorganized worker” affecting his or her participation

“in other concerted activities for the purpose of ...

mutual aid or protection” violates this federal policy.

Id.

7

The category of “other concerted activities” by its

terms encompasses something broader than joining or

organizing a union. Jd. (emphasis added). Indeed, if

it was not broader than “self-organization,” id., the

phrase would be superfluous. See Mackey v. Lanier

Collection Agency & Serv., Inc., 486 U.S. 825, 837

(1988).

Section 3 establishes that “any other undertaking or

promise in conflict with the public policy declared in

section [2] . . . shall not be enforceable in any court of

the United States.” 29 U.S.C. § 103. That is, contracts

restricting employees’ rights to engage in concerted

activities for mutual aid or protection are unenforce-

able.5 This is one of two categories of employer-

employee agreements made unenforceable by section

3, the other being any one in which a worker “under-

takes or promises not to join, become, or remain a

member of any labor organization.” Jd. The distinc-

tion between the two categories of unenforceable

agreements makes clear that the category of “any

other undertaking or promise in conflict with the

public policy declared in section [2]” encompasses a

broader range of agreements than contracts restrict-

ing unionization. Id.

By its terms, “other concerted activities for the

purpose of ... mutual aid or protection,” id. § 102,

includes employees acting in concert to bring claims

for resolution by a judge or arbitrator to protect their

5 So intent was Congress on preventing employers from forcing

employees to forgo their right to engage in concerted activities for

their mutual aid or protection that Norris-LaGuardia addressed

not just contracts but also any “undertaking or promise,” thus

ensuring that any such promise would not be enforceable in

federal court, regardless of whether it constituted a valid

contract under state law.

8

shared workplace rights (or an employee bringing

such a claim on behalf of other employees). Norris-

LaGuardia does not define “other concerted activities”

or “mutual aid or protection,” so ordinary meaning

controls, see Lawson v. FMR LLC, 134 S. Ct. 1158,

1165 (2014), “[a]bsent a clearly expressed legislative

intention to the contrary,” Consumer Prod. Safety

Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108

(1980).

“Concerted activities” plainly includes employees

bringing a grievance, complaint, or action together.

Under any reasonable interpretation, such a joint

legal claim is an “activity” that is “concerted,” and

Employers offer no plausible contrary reading of those

words. And when employees act in concert to bring

legal claims to vindicate workplace rights — such as

their right under the Fair Labor Standards Act of

1938 to overtime pay or wages for time spent on work

activities — they clearly do so for the purpose of

“mutual aid or protection.” 29 U.S.C. § 102. The

employees involved seek reciprocal benefit. The

participation of each one benefits the others (i.e.,

provides “aid”) by spreading the costs of litigation or

arbitration, and potentially achieving an outcome that

benefits many employees (e.g., obtaining damages for

multiple claimants and thus deterring the employer

from committing similar violations). Through joint or

collective claims, employees also provide each other

with “mutual ... protection” because strength in

numbers shields them from retaliation, and such claims

can protect all employees from further violations.®

6 See Mutual, BLACK’s LAW DICTIONARY 800 (2d ed. 1910)

(“[iJnterchangeable; reciprocal; each acting in return or corre-

spondence to the other; given and received”); Mutual, BLACK’S

LAW DICTIONARY 1218 (3d ed. 1933) (same); Mutual Aid,

9

The plain meaning of this language is confirmed by

precedent. This Court has held that “concerted activ-

ities for the purpose of ... mutual aid or protection”

encompasses efforts “to improve working conditions

through resort to administrative and judicial forums.”

Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66 (1978).

Every court of appeals to consider the question has

agreed.’ These cases interpret section 7 of the NLRA,

which contains language derived from Norris-

LaGuardia.®

WEBSTER’S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH

LANGUAGE 1618 (2d ed. 1934) (“[rjeciprocal aid among men in

social groups”).

7 See NLRB v. Alternative Entm’t, Inc., 858 F.3d 393, 402-03

(6th Cir. 2017) (“[cJoncerted activity” includes pursuit of employ-

ment claims “in all forums, arbitral and judicial”); Ernst & Young

Pet. App. 10a (“‘mutual aid or protection clause’” of the NLRA

“includes the substantive right to collectively ‘seek to improve

working conditions through resort to administrative and judicial

forums’”); Epic Pet. App. 5a (“Collective or class legal proceedings

fit well within the ordinary understanding of ‘concerted activi-

ties.’”); Brady v. NFL, 644 F.3d 661, 673 (8th Cir. 2011) (“[A]

lawsuit filed in good faith by a group of employees to achieve

more favorable terms or conditions of employment is ‘concerted

activity’ under § 7 of the National Labor Relations Act.”); Mohave

Elec. Coop., Inc. v. NLRB, 206 F.3d 1183, 1188-89 (D.C. Cir. 2000)

(“mutual aid or protection” clause protects collective action in

litigation); Altex Ready Mixed Concrete Corp. v. NLRB, 542 F.2d

295, 297 (5th Cir. 1976) (“[glenerally, filing by employees of a

labor related civil action is protected activity under section 7 of

the NLRA”); Leviton Mfg. Co. v. NLRB, 486 F.2d 686, 689 (ist

Cir. 1973) (“the filing of a labor related civil action by a group of

employees is ordinarily a concerted activity protected by § 7”).

8 Section 7 of the NLRA declares that “[e]mployees shall have

the right ... to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or protec-

tion.” 29 U.S.C. § 157. As the Senate Report to an early draft of

the NLRA made plain: “The first unfair labor practice restates

10

Section 4 of Norris-LaGuardia provides further

textual support for the conclusion that Congress

intended the Act to protect the concerted prosecution

of legal claims. Section 4 deprives federal courts of

jurisdiction to enjoin participation, “whether singly or

in concert,” in a set of enumerated actions to advance

workplace rights. 29 U.S.C. § 104. Subsection (d) bars

injunctions against “all lawful means aiding any

person participating or interested in any labor dispute

whois... prosecuting[] any action or suit in any court

of the United States or of any State.” Id. § 104(d)

(emphasis added). Congress thus recognized bringing

a lawsuit as a protected right of workers, on par

with striking, id. § 104(a), “[b]ecoming or remaining a

member of any labor organization,” id. § 104(b), and

picketing, id. § 104(f).

Epic and Murphy Oil incorrectly maintain that

section 4 supports them. They argue (at 38-39) that

“[a]ll of the activities specified in section 4 were things

employees could do on their own” rather than “obligat-

ing a tribunal or employer to treat them as a class.”

But their characterization that Employees contend

that a tribunal is “obligat[ed] .. . to treat [employees]

as a class” is a strawman. The protected right is

to pursue concerted legal claims, which is something

employees can “do on their own.” Neither the NLRA

nor Norris-LaGuardia guarantees that such claims

can proceed as a class action. Class treatment can be

denied under Rule 23 or any generally applicable

the familiar law already enacted by Congress in section 2 of

the Norris-La Guardia Act/,) ... rights which are admitted

everywhere to be the basis of industrial no less than political

democracy.” S. Rep. No. 73-1184, at 4 (1934).

11

procedural rules, just not based on illegal contracts

that forbid concerted activities.®

Epic and Murphy Oil further argue (at 39) that

“none of the specified activities [in section 4] had

anything to do with class proceedings,” so “there is no

reason to think Congress intended ‘concerted activi-

ties’ to include class proceedings.” Employers misrep-

resent their own agreements and ignore the statute’s

plain text. The clauses that Employers seek to enforce

restrict not just “class” proceedings but any litigation

or arbitration filed or joined by more than one

employee. Such joint claims are clearly encompassed

within section 4, which addresses participation in

litigation, “whether singly or in concert.” 29 U.S.C.

§ 104. Moreover, Employers provide no justification

for their assumption that the “concerted activities”

protected from employer action in NLRA §§ 7 and 8

and yellow-dog contracts in Norris-LaGuardia §§ 2

and 3 are limited to the set of practices protected from

injunctions in Norris-LaGuardia § 4. Employers’ non-

textual reading of section 4 provides no justification

for this Court to revisit its holding in Eastex that the

“concerted activities for ... mutual aid or protection”

language in NLRA § 7 (which derives from Norris-

LaGuardia § 2) includes joint pursuit of legal claims.

9 See, e.g., D.R. Horton, 357 NLRB at 2286 n.24 (“Nothing in

our holding guarantees class certification; it guarantees only

employees’ opportunity to pursue without employer coercion,

restraint or interference such claims of a class or collective

nature as may be available to them under Federal, State or local

law. Employees who seek class certification in Federal court will

still be required to prove that the requirements for certification

under Rule 23 are met, and their employer remains free to

assert any and all arguments against certification (other than

the [unlawful waiver]).”).

12

B. The History Of Norris-LaGuardia Shows

That Congress Intended To Render

Unenforceable Contracts Restricting Any

Concerted Activities To Advance Employee

Interests, Including Joint Legal Claims

The historical context and legislative history of

Norris-LaGuardia reinforce the conclusion compelled

by the statutory text.

Congress enacted Norris-LaGuardia to remedy the

decades-old management practice “f requiring work-

ers to submit to contract terms; ‘.ubiting them from

engaging in concerted activitie or their mutual aid

or protection (including, but not limited to, joining

unions). See Finkin, 93 Neb. L. Rev. at 9-17; Jskanian

v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 397-

400 (2014) (Werdegar, J., concurring and dissenting)

(describing Norris-LaGuardia’s history), cert. denied,

135 S. Ct. 1155 (2015).

Congress’s initial efforts to regulate employers’

imposition of such terms on workers were struck down

in a series of Lochner-era cases as an impermissible

infringement on employers’ “freedom of contract.”

See, e.g., Adair v. United States, 208 U.S. 161, 172-76

(1908); see also Coppage v. Kansas, 236 U.S. 1, 9-14

(1915) (striking down similar state legislation). In

Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229

(1917), the Supreme Court gave its express imprima-

tur to the enforceability of such yellow-dog contracts,

upholding an injunction against collective organizing

efforts on the ground that such contracts gave employ-

ers an enforceable property right.

Congress enacted Norris-LaGuardia in 1932 to

address the same problem in a different way: by elim-

inating the authority of the federal] courts to enforce

such agreements. See 29 U.S.C. § 103; see generally

13

IRVING BERNSTEIN, THE LEAN YEARS: A HISTORY OF

THE AMERICAN WORKER, 1920-1933, Ch. 11 (1969). As

the Senate Report states, “[o]me of the objects of this

legislation is to outlaw this ‘yellow dog’ contract.” S.

Rep. No. 72-163, at 15 (1932); see also H.R. Rep. No.

72-669, at 6 (1932) (“Section 3 is designed to outlaw

the so-called yellow-dog contract.”); see generally JOEL

I. SEIDMAN, THE YELLOW DOG CONTRACT (1932)

(contemporaneous doctoral dissertation on history

and content of yellow-dog contracts).

The phrase “yellow-dog contract” encompasses more

than agreements that forbid employees from joining

unions; it applies to all contracts that restricted

employees from concerted pursuit of workplace rights.

The term was first applied to leases of company

housing in mining towns that prohibited anyone other

than the miners’ immediate family members, doctors,

and morticians from having access to miners’ homes,

on pain of eviction. See Seidman at 31. Mining

companies feared that allowing miners to talk to union

organizers — or even to fellow workers in the privacy

of the home — might lead to group action.!°

Because Hitchman Coal opened the door to judicial

enforcement of all manner of yellow-dog contracts,

“fa]n almost endless array of legal games were played

by employers that made almost all collective action

by workers susceptible to legal prohibitions.” DANIEL

JACOBY, LABORING FOR FREEDOM: A NEW LOOK AT

THE HISTORY OF LABOR IN AMERICA 62 (1998). These

included employer-mandated promises “to adjust any

10 The United States Coal Commission of 1922 condemned

the “yellow dog” leases used by mining companies in its report,

“Civil Liberties in the Coal Fields.” U.S. COAL COMM’N, S. Doc.

No. 68-195, REPORT OF THE UNITED STATES COAL COMM’N, pt. 1,

at 169-70 (1925).

14

dispute that might arise by individual bargaining,” as,

for example, by waitresses at the Exchange Bakery

& Restaurant in New York City; to renounce any

“concerted action [with co-workers] with a view to

securing greater compensation” at the Moline Plow

Company; or to “arbitrate all differences” according to

the machinery set up by the employer and its company

union at United Railways & Electronic Company.

Seidman at 58-60, 66, 69. A contract offered by the

Clinton Saddlery Company provided: “No employee

can unite with his fellow workers in any effort to

regulate wages, hours, etc.” Id. at 65.

Congress was well aware of the breadth of these

contractual limitations on group efforts, and it enacted

Norris-LaGuardia to outlaw the full gamut of such

“yellow dog” contracts. As the Senate Report made

clear, “[n]jot all of these centracts are the same, but...

[ijn all of them the employee waives his right of free

association. . . in connection with his wages, the hours

of labor, and other conditions of employment.” S. Rep.

No. 72-163, at 14. In fact, just two years before adop-

tion of Norris-LaGuardia, Senator William E. Borah

answered the question “[W]hat is [a] ‘yellow dog’ con-

tract?” on the Senate floor by citing one that provided:

“I agree during employment under this contract that

I... will not ... unite with employees in concerted

action to change hours, wages, or working conditions.”

72 Cong. Rec. 7931 (Apr. 29, 1930).

11 Senator Borah and several! colleagues, including Senators

Norris and Wagner, spoke at length about yellow-dog contracts

in the successful opposition to the nomination of Judge John J.

Parker in 1930 to be a Supreme Court Justice. The opposition

centered on Judge Parker’s affirmance of an injunction against

striking miners who had signed a yellow-dog contract. See

International Org., United Mine Workers v. Red Jacket Consol.

15

Congress thus intended all promises or undertak-

ings that restricted employees to a course of individual

dealing with their employer to be extirpated as fully

as possible under federal law.

C. Enforcement Of Waivers Of Concerted

Legal Claims Offends The Policy Of Norris-

LaGuardia

Norris-LaGuardia’s statement of “the public policy

of the United States” rests on Congress’s finding that

“the individual unorganized worker is commonly help-

less to exercise actual liberty of contract.” 29 U.S.C.

§ 102. For that reason, the Act declares as “the public

policy of the United States” that “it is necessary” that

an employee “have full freedom of association . . . and

that he shall be free from the interference, restraint,

or coercion of employers . . . in other concerted activi-

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

Id. That express statement of public policy was a

direct response to widespread efforts by employers at

the time to require worker grievances to be presented

exclusively on an individual basis. The policy is as

relevant now as it was in 1932. Where wage and hour

violations are widespread but individual instances

Coal & Coke Co., 18 F.2d 839, 849 (4th Cir. 1927). Several of

the speeches informed Senators of the variety of yellow-dog

contracts. See, e.g., 72 Cong. Rec. 6574-79 (Apr. 7, 1930); id. at

7932 (Apr. 29, 1930) (remarks of Sen. Borah) (citing Exchange

Bakery contract described in text supra pp. 13-14). In fact,

Senator Norris spoke specifically about the use of yellow-dog

contracts to preclude concerted legal action: “It would enjoin

anyone from coming to our aid, from furnishing an appeal bond.”

72 Cong. Rec. 8191 (May 2, 1930). The legislative record in 1930,

fast upon Congress’s initial failure to enact Norris-LaGuardia in

1928 and just prior to its subsequent enactment in 1932, further

evidences Congress’s contemporaneous understanding of what

its law was designed to prohibit.

16

involve small amounts, or where fear of employer

retaliation or lack of access to qualified counsel is

pervasive, aggregation of claims may be the only

means of protecting workers.

In this way, Congress opposed what it saw as the

Lochner-era judiciary’s single-minded promotion of

“liberty of contract.” S. Rep. No. 72-163, at 15; see

Lochner v. New York, 198 U.S. 45, 57 (1905); see

generally Daniel Ernst, The Yellow-Dog Contract and

Liberal Reform, 1917-1932, 30 Lab. Hist. 251, 251-52

(1989).'2. The Supreme Court has long understood

Norris-LaGuardia to repudiate that embrace, which

it characterized in hindsight as the courts’ “‘self-

mesmerized views of economic and social theory.’”

Burlington N.R.R. Co. v. Brotherhood of Maint. of Way

Emps., 481 U.S. 429, 453 (1987) (quoting Brotherhood

of R.R. Trainmen v. Jacksonville Terminal Co., 394

U.S. 369, 382 (1969)).

It was and remains the public policy of the United

States that employees should be free to join together

in making common cause in any matter of work-

place rights, without interference by their employer.

Norris-LaGuardia conceives of that right as substan-

tive, a civil liberty insulated from any promise or

12 As stated in the debate on Norris-LaGuardia:

This [freedom-of-contract] doctrine presupposes that the

girl who secks a position in a department store, and the

owner of that store deal with each other on terms of equality.

She is free to work or not to work; he is free to employ or not

to employ her.

Or, to take another illustration, that a worker seeking

employment with the United States Steel Corporation and

the manager, acting for the corporation, deal on terms of

equality. One who still believes that will believe anything.

75 Cong. Rec. 5515 (Mar. 8, 1932) (remarks of Rep. Schneider).

17

undertaking that would blunt its exercise. As Senator

Norris stated, “Human liberty is at stake.” 72 Cong.

Rec. 8190 (May 2, 1930). Congress viewed the right

of employees to act in concert as no less a substantive

right than the First Amendment right “peaceably to

assemble.”

The statutory language and history establish that

Norris-LaGuardia’s policy guaranteeing the right to

concerted activity is not limited to joining a union

or engaging in collective bargaining, but extends to

collective efforts to enforce workplace rights. As this

Court has recognized, rights to earned wages “bear| |

such a relation to employees’ interests as to come

within the guarantee of the ‘mutual aid or protection’

clause.” Eastex, 437 U.S. at 569.

Any promise or undertaking by which an employee

abjures his future right to engage in concerted legal

action directly conflicts with the express federal policy

declared in Norris-LaGuardia and is unenforceable by

“any court of the United States.” 29 U.S.C. § 103.'3

13 In an effort to escape the application of Norris-LaGuardia,

Employers may point to Textile Workers Union v. Lincoln Mills

of Alabama, 353 U.S. 448, 457-59 (1957) (citing Norris-LaGuardia

§ 7). That case was unrelated to the non-enforceability of concerted-

action waivers under sections 2 and 3 of the Act. Lincoln Mills

concerned whether the “stiff procedural requirements for issuing

an injunction in a labor dispute” under section 7 were intended

to prevent a court from enforcing an employer's promise to

arbitrate disputes with a union. Id. at 458. Sections 2 and 3 were

not mentioned in Lincoln Mills, which is unsurprising, because

that case involved the prospect of arbitration by a labor union

as the collective representative of employees, not what is at

issue here — the putative waiver of the right to collective action

in the first instance. Section 2 denounces “yellow dog” contracts

because they disadvantage the “individual unorganized worker{[s]”

18

D. The Retail Litigation Center Misconstrues

The Norris-LaGuardia Act And Ignores Its

Purpose

Norris-LaGuardia plays a critical role in these cases

because it circumscribes the jurisdiction of the federal

who sign them, 29 U.S.C. § 102, a concern entirely absent when

the contracting party is a labor union.

Similarly, Boys Markets, Inc. v. Retail Clerk’s Union, Local

770, 398 U.S. 235 (1970), is not in tension with the position

advanced here. That case involved the anti-injunction provisions

of Norris-LaGuardia and the provision of the later-enacted Labor

Management Relations Act, 1947 (“LMRA”) that permitted suits

in federal court to enforce contracts between employers and

labor organizations. The question in Boys Markets was whether

Norris-LaGuardia’s anti-injunction provision prohibited federal

courts from ordering a union not to strike, if the union had

entered into a collective-bargaining agreement with a no-strike

provision and an arbitration provision that encompassed the

underlying grievance. In holding that Norris-LaGuardia did not

prohibit judicial enforcement of the no-strike clause in those

circumstances, the Supreme Court stated that the literal terms

of Norris-LaGuardia’s anti-injunction provision “must be accom-

modated to the subsequently enacted provisions of {the LMRA]”

because “[s]tatutory interpretation requires ... consideration

lof] the total corpus of pertinent law and the policies that

inspired ostensibly inconsistent provisions.” Jd. at 250.

Here, there is nothing in the FAA that Norris-LaGuardia must

“accommodate|]” because the FAA’s saving clause excludes

contracts subject to the general contract defenses of illegality and

conflict with public policy. See infra Part II.A. Moreover, while

Boys Market favored the LMRA as a statute enacted later than

Norris-LaGuardia, as between the FAA and Norris-LaGuardia,

Norris-LaGuardia would take precedence in any conflict as the

later-enacted statute. Indeed, Norris-LaGuardia expressly pro-

vides for the pro tanto repeal of any previously enacted statute

with which it comes into conflict. 29 U.S.C. § 115. Finally, Boys

Markets concerned Norris-LaGuardia’s anti-injunction provi-

sions; because no contract with an employee restricting concerted

activities was at issue, sections 2 and 3 were irrelevant, and Boys

Markets did not purport to interpret those provisions.

19

courts over the relief Employers seek — enforcement

of their agreements. Nevertheless, Employers have

chosen to ignore it. See supra p. 11. Only one amicus

in support of Employers seeks to fill this gap, and

it ignores both the plain text of the statute and its

purpose. See Retail Litigation Center Br. 28-30. Retail

Litigation Center argues that the purpose of sections

2 and 3 was to prevent “‘agreements stating that the

workers were not and would not become labor union

members” and that “[t]he comparison to an arbitra-

tion agreement is absurd” because “[a]n arbitration

agreement does not inhibit unionization.” Jd. at 29

(quoting Lincoln Fed. Labor Union No. 19129 v.

Northwestern Iron & Metal Co., 335 U.S. 525, 534

(1949)). But Norris-LaGuardia §3 does not bar

enforcement only of contracts “not to join, become, or

remain a member of” a union; it also bars contracts “in

conflict with the public policy declared in section [2},”

which protects the right to engage in all “concerted

activities” for employees’ “mutual aid or protection.”

29 U.S.C. §§ 102, 103. Retail Litigation Center simply

ignores language that contradicts its reading, and

it attempts to read it out of the statute. Moreover,

as shown above, supra Part 1.B, Norris-LaGuardia’s

purpose was to ban a wide variety of contracts restrict-

ing concerted activities and was not limited to union-

ization.'4

Retail Litigation Center also attempts to excise out

of Norris-LaGuardia most of section 4, claiming (at 29)

that the section only prevents courts from “enjoining

strikes” and “protect|s] picketers, not class plaintiffs.”

oe

14 Northwestern Iron does not mention Norris-LaGuardia. It

merely states that contracts banning employees from joining

unions were one type of “yellow dog contract ]}” covered by state

and federal labor laws. 335 U.S. at 534.

20

It ignores that section 4 bars injunctions of nine

separate activities, including participation in litiga-

tion. See 29 U.S.C. § 104(d); supra p. 10. Although

Retail Litigation Center (at 30) condemns the NLRB’s

reliance on Norris-LaGuardia as “revisionist history,”

it in fact offers the ahistorical reading of Norris-

LaGuardia, ignoring the pertinent provisions of the

statute.

Il. THE FAA DOES NOT MANDATE ENFORCE-

MENT OF CONTRACTS THAT ARE UNEN-

FORCEABLE UNDER NORRIS-LAGUARDIA

A. The FAA’s Saving Clause Exempts Contracts

That Violate Norris-LaGuardia From The

FAA

Properly understood, there is no conflict between

the FAA and Norris-LaGuardia. The FAA does not

require enforcement of contractual terms that are un-

lawful and contrary to public policy. The two statutes

can be harmonized through the FAA’s saving clause.

Under the FAA’s saving clause, an agreement to

arbitrate is enforceable, “save upon such grounds

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

contract.” 9 U.S.C. § 2. Illegality and inconsistency

with statutorily prescribed public policy are and were

widely recognized general contract defenses, both

at the time of the FAA’s enactment and today. See

Restatement (First) of Contracts § 512 (1932) (“A

bargain is illegal within the meaning of the Restate-

ment of this Subject if either its formation or its

performance is criminal, tortious, or otherwise opposed

to public policy.”); see also Restatement (Second) of

Contracts § 178(1) (1981) (“A promise or other term of

an agreement is unenforceable on grounds of public

policy if legislation provides that it is unenforceable or

the interest in its enforcement is clearly outweighed

21

in the circumstances by a public policy against the

enforcement of such terms.”). Norris-LaGuardia both

provides that contracts restricting concerted activities

by employees are unenforceable and declares such

contracts to be against “the public policy of the United

States.” 29 U.S.C. §§ 102, 103. These contracts are

thus unenforceable under the general contract defenses

of illegality and public policy. See Epic Pet. App. 14a-

15a.

The doctrine that contracts may be unenforceable

if contrary to public policy or statute is “generally

applicable,” not one that is specifically “applied in a

fashion that disfavors arbitration.” AT&T Mobility

LLC v. Concepcion, 563 U.S. 333, 341 (2011). An

arbitration agreement contrary to federal policy and

unenforceable under federal statute is just as un-

enforceable as any other illegal contract that is

contrary to public policy. See Prima Paint Corp. v.

Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n.12

(1967) (“As the ‘saving clause’ in § 2 indicates, the

purpose of Congress in 1925 was to make arbitration

agreements as enforceable as other contracts, but not

more so.”).

Concepcion is not to the contrary. In that case,

this Court held that a state common-law doctrine

forbidding class-arbitration waivers “interfere[d] with

fundamental attributes of arbitration and thus

create|d] a scheme inconsistent with the FAA.” 563

U.S. at 344. But the FAA’s saving clause confirms

what a straightforward application of the generally

applicable illegality defense already requires: the

FAA does not require enforcement of contract terms

that purport to eliminate the federal substantive right

te “concerted activities for the purpose of... mutual

aid or protection.” 29 U.S.C. § 102.

22

Unlike the Discover Bank doctrine invalidated

in Concepcion,'® Norris-LaGuardia is supportive of,

rather than hostile to, arbitration. Section 8 of Norris-

LaGuardia facilitates “voluntary arbitration” of labor

disputes. 29 U.S.C. § 108. Decades of experience

of labor arbitration have shown that arbitration of

collective employment claims is practical and efficient,

and involves none of the “procedural morass” with

which this Court was concerned in Concepcion. 563

U.S. at 348-50. See generally National Academy of

Arbitrators Br.

Applying Norris-LaGuardia’s ban on enforcement of

yellow-dog contracts thus contravenes neither the text

nor the pro-arbitration policy of the FAA.

B. Insofar As The FAA Is Read To Require

Enforcement Of Employment Contracts

Mandating Bilateral Arbitration, It Would

Be Superseded By Norris-LaGuardia

The clauses at issue are unenforceable under

Norris-LaGuardia regardless of this Court’s interpre-

tation of the FAA’s saving clause. Employers inter-

pret the FAA to require enforcement of employment

contracts mandating that all employment disputes

be submitted to bilateral arbitration, with no joint or

collective pursuit of legal claims in either a judicial or

an arbitral forum permitted. See, e.g., Epic/Murphy

Oil Br. 18-29. If this interpretation of the FAA were

correct (and, as shown above, see supra Part II.A, it

is not), enforcement would nonetheless be barred by

Norris-LaGuardia.

Under Employers’ interpretation of the FAA, the

FAA and Norris-LaGuardia are irreconcilable. Both

— —

18 See Discover Bank v. Superior Court, 113 P.3d 1100 (Cal

2005).

23

the FAA and Norris-LaGuardia relate to the enforce-

ability of contracts. The FAA makes one set of

contracts (arbitration clauses in maritime or commer-

cial contracts) “enforceable,” 9 U.S.C. § 2, and Norris-

LaGuardia states that another set of contracts (con-

tracts restricting employee unionization or concerted

activities for mutual aid or protection) “shall not be

enforceable,” 29 U.S.C. § 103. Although the sets of

contracts covered by the two statutes are generally

distinct, they intersect in the form of employment

contracts requiring bilateral arbitration of all employ-

ment disputes. Such contracts are unenforceable

under Norris-LaGuardia, see supra Part I, but (under

Employers’ view) enforceable under the FAA.

Any conflict between the two statutes must be

resolved in favor of Norris-LaGuardia as the later-

enacted statute. Most obviously, fidelity to the text

of Norris-LaGuardia so requires because the statute

expressly dictates what courts should do in the

event of a conflict with another statute. It provides

that “[ajll acts and parts of acts in conflict with the

provisions of this chapter [29 U.S.C. §§ 101-115] are

repealed.” 29 U.S.C. § 115.

And even absent this provision, settled principles

of statutory interpretation require that, when two

statutes “are in irreconcilable conflict, the later act to

the extent of the conflict constitutes an implied repeal

of the earlier one.” Posadas v. National City Bank

of New York, 296 U.S. 497, 503 (1936). The FAA

was enacted in 1925 and Norris-LaGuardia in 1932.

Thus, to the extent the FAA conflicts with Norris-

LaGuardia, Norris-LaGuardia controls.

The FAA was codified as part of the re-codification

of the United States Code in 1947, but re-codification

by itself is not a substantive amendment. See, e.g.,

24

Finley v. United States, 490 U.S. 545, 554 (1989);

United States v. Welden, 377 U.S. 95, 98 n.4 (1964);

Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S.

222, 227 (1957); Anderson v. Pacific Coast S.S. Co.,

225 U.S. 187, 198-99 (1912). For purposes of applying

the later-enacted statute canon, see Posadas, 296

U.S. at 503, the Supreme Court has held that a non-

substantive re-enactment is not considered a later

enactment, see Bulova Watch Co. v. United States,

365 U.S. 753, 758 (1961). As the NLRB pointed out,

“fijt seems inconceivable that legislation effectively

restricting the scope of the Norris-LaGuardia Act and

the NLRA could be enacted without debate or even

notice, especially in 1947, when those labor laws

were both relatively new and undeniably prominent.”

NLRB Pet. App. 52a. Thus, Norris-LaGuardia would

take precedence over the FAA in the event of any

conflict.

C. The FAA Does Not Take Precedence Over

Norris-LaGuardia

Employers and their amici argue that, in the event

of a conflict, the FAA should take precedence over the

labor statutes. These arguments fail.

1. Epic and Murphy Oil argue (at 54) that the FAA

should take precedence over the NLRA as the purport-

edly “more specific” statute (they do not address

Norris-LaGuardia). Their argument rests on a selec-

tive quotation of this Court’s decision in Morton uv.

Mancari, 417 U.S. 535 (1974), which stated: “Where

there is no clear intention otherwise, a specific statute

will not be controlled or nullified by a general one,

regardless of the priority of enactment.” Jd. at 550-51

(emphasis added). In Norris-LaGuardia, Congress

expressed its clear intention that “[a]ll acts and

parts of acts in conflict with [Norris-LaGuardia] are

25

repealed.” 29 U.S.C. § 115. Thus, even if the FAA

were deemed more specific, Norris-LaGuardia expressly

repealed all earlier conflicting statutes.

In any event, Norris-LaGuardia is the more specific

statute addressed to the question in these cases. Each

statute declares that certain types of contractual

clauses within its sphere (provisions restricting

concerted activities for Norris-LaGuardia; arbitration

clauses for the FAA) are either unenforceable (Norris-

LaGuardia) or enforceable (FAA). But Norris-

LaGuardia addresses a much narrower sphere: it

applies specifically to employment contracts, 29 U.S.C.

§§ 102, 103, whereas the FAA applies generally to

all contracts “involving commerce” (and maritime

contracts), 9 U.S.C. § 2.

2. Another group of law professors, who do not

profess any expertise in labor law, appear as amici to

argue that the FAA enjoys a special stature among

federal statutes such that, “[ijf Congress does not ex-

pressly override the FAA, .. . then the federal statute

cannot be construed to abrogate or amend the parties’

arbitration agreement.” Law Professors in Support of

Employers Br. 10; see also id. at 9 (statute can limit

FAA only if it “expressly precludes or limits arbitra-

tion”). Their assertion conflicts with this Court’s

clear holding that, “[ljike any statutory directive, the

[FAA’s] mandate may be overridden by a contrary

congressional command,” which can be shown by “the

statute’s text or legislative history or from an inherent

conflict between arbitration and the statute’s under-

lying purposes.” Shearson/American Express, Inc. v.

McMahon, 482 U.S. 220, 226-27 (1987) (citation

26

and alteration omitted).'6© This Court has never

so privileged the FAA as to impose a requirement that

a statute must refer expressly to arbitration to over-

ride it. Such a requirement would violate the canon

that “[t]he legislature cannot derogate from ... the

authority of its successors.” ANTONIN SCALIA & BRYAN

A. GARNER, READING LAW: THE INTERPRETATION OF

LEGAL TEXTS 278 (2012). This canon makes it

“lim]permissible for a legislature to prescribe the only

words that will be effective to produce an amend-

ment.” Id. at 279.'7

Norris-LaGuardia contains a “congressional com-

mand” that employers may not “interfere[]” with or

“restrain[]” concerted legal action by contract. 29

U.S.C. § 102; see supra Part 1.A; see also supra Part

I.B. The lack of an express reference to arbitration in

Norris-LaGuardia does not obscure this clear intent. 8

16 In fact, the “contrary congressional command” test does not

apply here because these agreements purport to waive employ-

ees’ substantive statutory rights to engage in concerted activities,

and such waivers are vnenforceable, even under the FAA.

See Hobson Br. 49-50. But even if a “contrary congressional

command” were required, it is present here.

17 At most, the Court has suggested that, where two construc-

tions of a statute are “in equipoise,” a construction that does not

restrict arbitration will be favored. CompuCredit Corp. v. Green-

wood, 565 U.S. 95, 109 (2012) (Sotomayor, J., concurring in the

judgment).

18 There is no question, for example, that, under Title VII of

the Civil Rights Act of 1964, employers may not enforce a racially

discriminatory arbitration agreement on their employees,

notwithstanding the lack of any reference to arbitration in that

statute. Similarly, other civil rights statutes such as the Age

Discrimination in Employment Act of 1967 or the Americans

with Disabilities Act of 1990 would preclude enforcement of

arbitration clauses that discriminated against the protected

group, regardless of the lack of mention of arbitration. The result

27

After all, “the arbitration requirement” in these

clauses “is not the problem”; the problem is the “ban

on initiating, in any forum, concerted legal claims.”

Ernst & Young Pet. App. 12a. When Congress enacted

Norris-LaGuardia, there was no reason to expect that

employers would integrate arbitration clauses into

yellow-dog contracts by pairing a restriction on con-

certed legal claims with an arbitration requirement.

Further, Congress had no reason to consider the

FAA’s application to workers over whom Congress

(under then-prevailing precedent) had no power.

When both the FAA and Norris-LaGuardia were

enacted, “congressional authority to regulate under

the commerce power was to a large extent confined

by [Supreme Court] decisions” to the actual channels

and instrumentalities of interstate commerce. Circuit

City Stores, Inc. v. Adams, 532 U.S. 105, 116 (2001).

Congress had power to regulate the terms and condi-

tions of employment for only those workers whose

work took them across state lines, and these workers

it exempted. Jd. It would be extraordinary to hold

that, because Congress failed to anticipate both this

Court’s expansion of the commerce power and its

application of the FAA three-quarters of a century

should be no different here, not least because Norris-LaGuardia,

like the antidiscrimination statutes, was conceived as a civil

rights law. See 75 Cong. Rec. 4504 (Feb. 23, 1932) (remarks of

Sen. Norris) (“He can not associate with his fellows. In connec-

tion with his fellows, he can not present a grievance to the

employer. ... He must singly present any grievance he has. .. .

He has no opportunity to join with his fellows and make his

demands effective. In effect, if he must live and support his

family and clothe his children, he must surrender his liberty.”).

To give effect to its plain text and protect the substantive right

of freedom of association, the Act need not expressly state that it

cannot be short-circuited by an arbitration clause.

28

later, the law enacted in 1932 must be denied its plain

meaning, its policy given no effect.

a

In the debate on Norris-LaGuardia, Representative

Schneider expressed the hope that, even though the

nation’s emerging industrial and social problems

would call for future legislative redress, “[a]t least, the

problem of ... ‘yellow-dog’ contracts will have been

removed from the arena and we can then take up other

questions.” 75 Cong. Rec. 5515 (Mar. 8, 1932). Alas,

the yellow-dog contract has re-entered the arena,

and courts have not thus far fully engaged the law

Congress fashioned precisely to eradicate this social

evil. This Court should apply Norris-LaGuardia’s

protections according to their plain text, as Congress

always intended.

CONCLUSION

The judgments of the Seventh Circuit in No. 16-285

and of the Ninth Circuit in No. 16-300 should be

affirmed; the judgment of the Fifth Circuit in No.

16-307 should be reversed.

Respectfully submitted,

MATTHEW W. FINKIN DAVID C. FREDERICK

UNIVERSITY OF ILLINOTS Counsel of Record

COLLEGE OF LAW JEREMY S.B. NEWMAN

504 East Pennsylvania Ave. BENJAMIN D. MARGO

Champaign, [Illinois 61820 KELLOGG, HANSEN, TODD,

217) 383-3884 FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W., Suite 400

Washington, D.C. 20036

(202) 326-7900

August 16, 2017 (dfrederick« kellogghansen.com)