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

RECORD

Nos. 16-285, 16-300, 16-30

IN THE

Supreme Court of the Anited States

EPIC SYSTEMS CORPORATION,

Petitioner,

v.

JACOB LEWIS,

Respondent.

ERNST & YOUNG LLLP, ET AL.,

Petitioners,

v.

STEPHEN MORRIS, ET AL.,

Respondents.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

MURPHY OIL USA, INC., ET AL..,

Respondents.

ON WRITS OF CERTIORARI TO

THE UNITED STATES COURTS OF APPEALS FOR

THE SEVENTH, AND NINTH CIRCUITS

BRIEF OF AMICUS CURIAE

NEW ENGLAND LEGAL FOUNDATION

IN SUPPORT OF THE EMPLOYER PARTIES

Counsel for Amicus Curiae

Benjamin G. Robbins

Counsel of Record

Martin J. Newhouse, President

New England Legal Foundation

150 Lincoln Street,

Boston, Massachusetts 02111-2504

(617) 695-3660

June 16, 2017 benrobbins@nelfonline org

TABLE OF CONTENTS

TABLE OF AUTHORITIES. .............0000:sece0.-2-0-e000s iv

INTEREST OF AMICUS CURIAE ......................-..... 1

SUMMARY OF ARGUMENT...................--.ccceseeeeeeees 2

FEST Re ae ee eS eT 6

I. THE NLRA DOES NOT DISPLACE

THE FAA’S MANDATE TO ENFORCE

CLASS AND COLLECTIVE ACTION

WAIVERS IN EMPLOYMENT

ARBITRATION AGREEMENTS. .................... 6

A. The Starting Point Is The FAA,

Which Requires The Challenging

Party To Show That The NLRA

Clearly Provides Employees With

The Substantive Right To Pursue

Group Legal Action Against

TE AT TN 8

B. The NLRA Was Intended To

Resolve Workplace “Industrial

Disputes” Over Negotiable

“Terms And Conditions Of

Employment,” Not Legal

Disputes Over Rights Of

Employment That Are

Guaranteed By Other Statutes. .......... 10

Group Litigation Is Incompatible

With The NLRA’s Purpose Of

Achieving Industrial Peace

Through Group Negotiation In

I titlicdaniccrnsdinndeentnnsncses 12

Under The Rule of Ejusdem

Generis, Section 7’s Residual

Phrase “Other Concerted

Activities” Simply Means That

Employees Have The Right To

Join Together In The Workplace

For A Common Cause, But

Without Having To Form A

Union Or Engage In Collective

acai creeartdianscsesbaenionmnanade 14

Congress Chose The Phrase

“Concerted Activities,” Not

“Concerted Action,” Indicating

An Intent To Protect The Right

To Engage In Certain Conduct,

Not The Right To Sue.......................... 18

When Understood In Its

Historical Context, The NLRA’s

Protection Of “Concerted

Activities” Simply Meant That It

Was No Longer Illegal For

Employees To Act In Concert To

Address Their Working

REE ET Ce eee 20

ii

IT. NOTHING IN EASTEX V. NLRB

SUGGESTS THAT THE NLRA

OVERRIDES THE FAA’S MANDATE

TO ENFORCE CLASS AND

COLLECTIVE ACTION WAIVERS IN

EMPLOYMENT ARBITRATION

I trdctnscvinccstatnsetictnnmasctinncctonninite 24

Se hiccititinnndisnrornstansineendene snsinincdniinienmnniimiinntia 27

TABLE OF AUTHORITIES

CASES

American Exp. Co. v. Italian Colors Restaurant,

ee Sy I a «cud snicinisnaninianeneiienns 7,8

AT&T Mobility LLC v. Concepcion,

I I ce eenninepeneenintpseienin’ 8, 14

Brooks v. NLRB,

EE ETT is dnsncernipeitandetieninepeanbenennabeniebannies 12

Christopher v. SmithKline Beecham Corp.,

Se TN. IIIT icrecchesctinsnsideaniniieeinsngiontninesspscosenney 15

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001)........ jes i RE eee ee 15

CompuCredit Corp. v. Greenwood,

ii ceitnchemanenioniiibaioa 9,14

Dorsey v. United States,

a sienna 10

Eastex, Inc. v. NLRB,

I ssc censntingtaninianatinn 5, 24, 25

Gilmer v. Interstate/Johnson Lane Corp.,

I a cnaieciontainainias 9

Hoffman Plastic Compounds, Inc. v. NLRB,

es Se ao secnsinniinsiddeinesnncitantasésatinmencesenes 10

Intl Union, U. A. W., A. F. of L., Local 232 v.

Wisconsin Employment Relations Bd.,

II vic. jreccscsnncinncssendinnignanenenencte 20, 23

iv

Jacksonville Bulk Terminals, Inc. v. Int7

Longshoremen’s Ass'n,

ER a See oe RE 21

Natl Woodwork Mfrs. Ass’n v. NLRB,

a snscuincionindeiii 20

NLRB v. Bildisco & Bildisco,

TE 10

NLRB v. Phoenix Mut. Life Ins. Co.,

167 F.2d 968 (7th Cir. 1048). ..........0..cccscccccessceeess 17

NLRB v. SW Gen., Inc.,

A ee ae a 15

NLRB v. Washington Aluminum Co.,

I RI Re oR 17

Shearson/Am. Exp., Inc. v. McMahon,

Ts iscnsthint ckaptinsecsisnemniene oats 8, 9, 11

Yates v. United States,

rE EE ss cccccsceciicecsstesencceiuentnapen 14,17

STATUTES

fe EES a ne eee 18

I tinsiclaitibiictiuiiieiicendia pideeeaiaaieelbiiaiendaiiel passim

al csauienenindenetaie .. 19

BE es ey CD cictntttecsevscescrsctntsccssocnsse 18

I eeunloeriiall 18

a cecal aincicasiteibamieindiciind 19

i ecehigatsiasmsanlani 21

a aiiieaabunianal 22

SLL AE OL 22

I UIE siduestesntodedisoctssckbssasctsemmapseiniceennel passim

SEIDEN DLO OMEN 25

lai ain ct cecinidiabecbemnadiionanelil passim

I i ons sasinkiindbbeniibaininniseinesintnesendees 6

UN os os aindineneeninndiens 19

29 U.S.C. § 201 ef 000. .....cccccseceeess--. ntbighieidadnsdidinlebii 7

ITE Tt TT is dinsinhesondenbccancebicemisbiendadsctbenesibubienies 7

I ihisionedicanseoctvncesoendapebiddundseenssiievaisties 7

I a sitriiiciccscninancossesscessensensedansies 18

Oe ee oe I tatcccccrecccsensicecincsetnnnsntesseses 18

Pub. L. No. 75-718, § 16(b), 52 Stat. 1069 (1938)... 23

OTHER AUTHORITIES

EERSTE ee a ra 7, 23

Robert A. Gorman and Matthew W. Finkin, The

Individual and the Requirement of “Concert”

Under the National Labor Relations Act,

130 U. Pa. L. Rev. 286 (1981)....................0000 13, 23

Charles J. Morris, NLRB Protection in the Nonunion

Workplace: A Glimpse at A General Theory of

Section 7 Conduct,

137 U. Pa. L. Rev. 1673 (1989).................. 13, 16, 17

William B. Rubenstein, 1 Newberg on Class Actions

i a cadiesaconbduneai aunt 23

INTEREST OF AMICUS CURIAE

Amicus curiae New England = Legal

Foundation (“NELF”) seeks to present its views, and

the views of its supporters, on whether, in the case of

an arbitration agreement requiring employees to

arbitrate on an individual basis only, the mandate to

enforce such an agreement under § 2 of the Federal

Arbitration Act (FAA), is overridden by § 7 of the

National Labor Relations Act (NLRA), which

protects an employee’s “right . . . to engage in other

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

29 U.S.C. § 157.}

NELF is a nonpvofit, nonpartisan, public

interest law firm, incorporated in Massachusetts in

1977, and headquartered in Boston. Its membership

consists of corporations, law firms, individuals, and

others who believe in NELF’s mission of promoting

balanced economic growth in New England,

protecting the free enterprise system, and defending

economic rights. NELF’s members and supporters

include both large and small businesses located

primarily in the New England region.

1 Pursuant to Supreme Court Rule 37.6, NELF states that no

counsel for a party authored NELF’s amicus brief in whole or in

part, and no person or entity, other than amicus, made a

monetary contribution to the preparation or submission of the

brief.

Pursuant to Rule 37.3(a), NELF has filed with this brief a

letter of consent from counsel for the NLRB, which is the

petitioner in NLRB v. Murphy Oil, Case No. 16-307. All of the

remaining parties in these consolidated cases have filed with

the Court blanket letters of consent to the filing of amicus

briefs.

NELF is committed to upholding the FAA’s

mandate to enforce class action waivers contained in

valid arbitration agreements. This serves the FAA’s

purpose to enforce arbitration agreements according

to their terms so as to facilitate streamlined

proceedings. NELF is also committed to upholding

the FAA’s mandate with respect to the arbitration of

federal statutory claims, unless the relevant statute

displaces the FAA by providing a nonwaivable right

to pursue group legal action. When the federal

statute at issue, here the NLRA, does not announce

any such substantive right, the class action waiver

should be enforced under the FAA.

In addition to this amicus brief, NELF has

filed many other related amicus briefs in this Court,

arguing for the enforcement of arbitration

agreements according to their terms under the FAA.?

For these and other reasons discussed below,

NELF believes that its brief will assist the Court in

deciding the issue presented in this case.

SUMMARY OF ARGUMENT

At issue is whether the FAA’s mandate to

enforce class and collective action waivers in

employment arbitration agreements is displaced by

§ 7 of the NLRA, which grants employees “the right

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

mutual aid or protection.” Nowhere does the text,

2 See DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015); Am.

Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013);

Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064 (2013);

AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011); Hail

St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008); Green

Tree Fin. Corp. v. Bazzle, 539 U.S. 444 (2003).

2

purpose, or history of the NLRA clearly establish

that employees have a substantive right to join

together and sue their employer. Therefore, the

waivers should be enforced.

The employees’ underlying claim is a legal

dispute over their qualification to receive overtime

payments, as provided by the FLSA and state wage

law. This is not an “industrial dispute” over a

negotiable “difference as to wages, hours, or other

working conditions,” as Congress expressly intended

in the NLRA’s statement of purpose. The NRLA was

clearly intended to resolve contractual disputes over

terms of employment, by protecting employees’

rights to organize in the workplace and bargain

collectively with their employers. This has nothing

to do with the resolution of a legal dispute over

rights of employment that are guaranteed by other

statutes. Such rights are not negotiated in the

workplace. Therefore, the underlying statutory

claims here appear to fall outside the NLRA’s

intended scope and should not be enforceable under

the NLRA.

The NLRA was intended to achieve industrial

peace by promoting group negotiation and

compromise in the workplace. This purpose is

incompatible with group litigation in court or in

arbitration. Class actions are inherently coercive,

not cooperative, and they often create the risk of “in

terrorem” settlements. Group legal action is not the

“strength in numbers” that Congress had in mind

when it declared its intent to protect employees’ “full

freedom of association” for the purpose of

“negotiating” and “bargaining” with their employers.

Section 7 of the NLRA enumerates specific

protected concerted activities, followed by the

catchall phrase “other concerted activities.” Under

the rule of ejusdem generis (“of the same kind”),

“other concerted activities” should be defined and

limited by the specific concerted activities that

precede it. Those specific concerted activities

identify certain formal ways in which employees can

organize in the workplace and address working

conditions with their employer. “Other concerted

activities,” then, should only protect various similar

ways in which employees can join together in the

workplace, but without having to form a union or

engage in collective bargaining. Those activities

would have nothing to do with group legal action. To

interpret the phrase so broadly would render § 7’s

list of concerted activities superfluous.

Congress chose the phrase “concerted

activities” in § 7, not “concerted action.” When

Congress wants to protect or proscribe certain

conduct, it generally uses the word “activity,” as it

did here. But when Congress wants to create a right

to sue, it generally uses the word “action,” whether

by itself or in such phrases as “civil action” or “cause

of action.” Similarly, Congress did not create a

private right of action in the NLRA and instead

delegated enforcement powers to the NRLB. It is

unlikely, then, that “other concerted activities” was

intended to include group legal action by employees.

The NLRA should be understood in its

historical context. Before the NLRA’s passage, any

efforts by employees to act in concert, in and around

the workplace, were treated as illegal conspiracies or

combinations in restraint of trade. In the labor-

related statutes preceding the NLRA, Congress used

the phrases “in concert” and “concerted activities” to

begin removing the legal barriers that had prevented

workers from joining forces in the workplace. In a

clean break from the past, the NLRA reversed the

historical meaning of “concerted activities”--i.e.,

legally prohibited group conduct--to legally protected

group conduct. But this had nothing to do with

creating a new right of collective legal action against

employers.

Nothing in Eastex, Inc. v. NLRB, 437 U.S. 556

(1978), suggests that the NLRA creates a

substantive right of group legal action that displaces

the FAA’s mandate to enforce class and collective

action waivers in employment arbitration

agreements. Eastex did not involve the FAA, did not

involve a dispute over the NLRA’s “other concerted

activities” language, and it did not involve any

judicial action taken by employees. Instead, that

case decided the unrelated issue whether the

purpose of certain concerted activity--the

distribution of a union newsletter in the workplace--

satisfied the NLRA’s “other mutual aid or protection”

requirement. The Court held that the concerted

workplace activity at issue served a protected

purpose, even though the newsletter urged

employees to take political action outside the

workplace, concerning issues affecting workers

generally. The Court based its decision largely on

the NLRA’s broad definition of “employee,” which

includes the employees of other employers. None of

this bears on the issue here.

ARGUMENT

THE NLRA DOES NOT DISPLACE THE

FAA’S MANDATE TO ENFORCE CLASS

AND COLLECTIVE ACTION WAIVERS

IN EMPLOYMENT ARBITRATION

AGREEMENTS.

At issue in these consolidated cases is

whether, in the case of an arbitration agreement

that requires employees to arbitrate on an individual

basis only, the mandate to enforce the agreement

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

(FAA), is overridden by § 7 of the National Labor

Relations Act (NLRA), which protects an employee’s

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

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

§ 157.3 The NLRA also provides that “[ijt shall be an

unfair labor practice for an employer . . . to interfere

with, restrain, or coerce employees in the exercise of

the rights guaranteed in section [7]... .” 29 U.S.C.

§ 158(a)(1).

The employees here each signed such a pre-

dispute arbitration agreement. They now allege that

they have been wrongfully denied overtime

3 Section 7 of the NLRA provides, in relevant part:

Employees shall have the right to self-

organization, to form, join, or assist labor

organizations, to bargain collectively

through representatives of their own

choosing, and to engage in other concerted

activities for the purpose of collective

bargaining or other mutual aid or protection

29 U.S.C. § 157.

payments under the Fair Labor Standards Act, 29

U.S.C. § 201 et seq. (FLSA), and cognate state wage

laws. Notwithstanding their arbitration

agreements, the employees filed putative class and

collective actions in federal court, invoking both Fed.

R. Civ. P. 23 and the FLSA’s mechanism for a

collective (opt-in) action.

Notably, the Court has already decided that

neither Rule 23 nor the FLSA’s collective action

mechanism overrides the FAA’s mandate to enforce

class action waivers in_ valid arbitration

agreements. Nonetheless, the employees and the

NLRB, which is also a party to these consolidated

cases, argue that employees have a nonwaivable

right to pursue group legal action against their

employers, because it is a form of “other concerted

activity” that is protected under § 7 of the NLRA.

429 U.S.C. § 216(b) (“An action to recover [for] liability . . . may

be maintained against any employer .. . by any one or more

employees for and in behalf of himself or themselves and other

employees similarly situated. No employee shall be a party

plaintiff to amy such action unless he gives his consent in

writing to become such a party and such consent is filed in the

court in which such action is brought.”)

5 See American Exp. Co. v. Italian Colors Restaurant, 133 S. Ct.

2304, 2309 (2013) (“Nor does congressional approval of Rule 23

establish an entitlement to class proceedings for the vindication

of statutory rights.”); id. at 2311 (“In Gilmer [v.

Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)] ..., we

had no qualms in enforcing a class waiver in an arbitration

agreement even though the federal statute at issue, the Age

Discrimination in Employment Act[,] [which incorporates the

FLSA’s procedures at 29 U.S.C. § 626(b)] expressly permitted

collective actions.”).

A. The Starting Point Is The FAA,

Which Requires The Challenging

Party To Show That The NLRA

Clearly Provides Employees With

The Substantive Right To Pursue

Group Legal Action Against Their

Employer.

“The [FAA] provides the starting point for

answering the questions raised in this case.”

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

225 (1987) (first considering FAA’s mandate and

then concluding that FAA requires enforcement of

agreement to arbitrate disputes under Securities

Exchange Act of 1934 and civil RICO statute). And

the FAA requires the enforcement of a class action

waiver that is contained in a valid arbitration

agreement. This is because “[t]he overarching

purpose of the FAA .. . is to ensure the enforcement

of arbitration agreements according to their terms so

as to facilitate streamlined proceedings.” AT&T

Mobility LLC v. Concepcion, 563 U.S. 333, 344

(2011). Invalidating a class action waiver

“Irjequir[es} the availability of classwide

arbitration[.] [This, in turn,] interferes with

fundamental attributes of arbitration and thus

creates a scheme inconsistent with the FAA.” ZId.

The FAA’s mandate to enforce class action

waivers applies equally in “claims that allege a

violation of a federal statute, unless the FAA’s

mandate has been “overridden by a contrary

congressional command.” American Exp. Co. uv.

Italian Colors Restaurant, 133 S. Ct. 2304, 2309

(2013) (emphasis added) (citation and internal

quotation marks omitted). The burden falls on the

8

party opposing the class action waiver (here, the

employees and the NLRB) to show that the NLRA

displaces the FAA’s mandate to enforce the waiver.

See McMahon, 482 U.S. at 227 (“The burden is on

the party opposing arbitration . . . to show that

Congress intended to preclude a waiver of [the right

to pursue group legal action] . . . for the statutory

rights at issue.”).

To satisfy their burden, the employees and the

NLRB must show that “such an intent [to provide a

nonwaivable right to pursue group legal action] will

be deducible from [the NLRA’s] text or legislative

history, or from an inherent conflict between

arbitration and the [NLRA’s] underlying purposes.”

McMahon, 482 U.S. at 227 (citation and internal

quotation marks omitted). See also Gilmer v.

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

(1991) (discussing same). And if this inquiry raises

any doubts on the matter, “we resolve doubts in

favor of arbitration.” CompuCredit Corp. ov.

Greenwood, 565 U.S. 95, 109 (2012) (Sotomayor, J.,

concurring). See also Gilmer, 500 US. at 26

(“Throughout such an inquiry, it should be kept in

mind that questions of arbitrability must be

addressed with a healthy regard for the federal

policy favoring arbitration.”) (citation and internal

quotation marks omitted).

To displace the FAA’s mandate, then, it is not

enough for the parties to argue that the isolated

residual phrase “other concerted activities,” in § 7 of

the NLRA, could be interpreted to include group

legal action. Instead, the employees and the NLRB

must show that the full text, the purpose, or the

history of the NLRA requires such an interpretation.

9

Whether the employees and the NLRB have

met their burden is an issue of inter-statutory

interpretation that should be decided by this Court,

not the NLRB. At stake is the resolution of a

potential conflict between two federal statutes (the

FAA and the NLRA), as opposed to the resolution of

a purely internal issue of statutory interpretation

under the NLRA, which would have no consequences

on another federal statute. “[W]e have accordingly

never deferred to the [NLRB’s] remedial preferences

where such preferences potentially trench upon

federal statutes and policies unrelated to the NLRA

....” Hoffman Plastic Compounds, Inc. v. NLRB,

535 U.S. 137, 144 (2002) (emphasis added). See also

Dorsey v. United States, 567 U.S. 260, 291 (2012)

(“[W]hen two statutes are capable of co-existence, it

is the duty of the courts, absent a clearly expressed

congressional intention to the contrary, to regard

each as effective.”) (emphasis added) (citation and

internal quotation marks omitted); NLRB v. Bildisco

& Pildisco, 465 U.S. 513, 529 n.9 (1984) (“While the

Board’s interpretation of the NLRA should be given

some deference, the proposition that the Board’s

interpretation of statutes outside its expertise is

likewise to be deferred to is novel.”).

B. The NLRA Was Intended To

Resolve Workplace “Industrial

Disputes” Over Negotiable “Terms

And Conditions Of Employment,”

Not Legal Disputes Over Rights Of

Employment That Are Guaranteed

By Other Statutes.

In their underlying dispute, the employees

allege a violation of their statutory right to receive

10

overtime payments, as provided by the FLSA and

cognate state wage laws. This is a legal dispute over

their qualification to receive wages in an amount

that is guaranteed by statutes other than the NLRA.

This is not an “industrial dispute” over a negotiable

“difference as to wages, hours, or other working

conditions,” as Congress intended those words in the

NLRA. 29 U.S.C. § 151 (“Findings and Declaration

of Policy”). See also McMahon, 482 U.S. at 227

(federal statute’s underlying purpose is a key factor

in determining whether that statute displaces FAA).

In particular, the NLRA’s stated purpose is to

promote “the friendly adjustment of industrial

disputes arising out of differences as to wages, hours,

or other working conditions,” which is achieved “by

protecting the exercise by workers of full freedom of

association” so that they may “negotiat/e] the terms

and conditions of their employment” through

“collective bargaining.” 29 U.S.C. § 151 (emphasis

added).

Clearly, the NRLA was intended to resolve

contractual disputes over negotiable terms of

employment, by protecting employees’ rights to

organize in the workplace and bargain collectively

with their employers. This is “the friendly

adjustment of industrial disputes” that Congress

identified in § 1 of the NLRA.

But this bargaining process in the workplace

has nothing to do with the resolution of a legal

dispute over rights of employment that are

guaranteed by other statutes. A statutorily fixed

right of employment is not determined by

11

“negotiatiion],” “adjustment,” oor “bargaining”

between employees and their employer. 29 U.S.C.

§ 151. That statutory right is therefore not a

negotiable “term” or “condition” of employment

under § 1 of the NLRA. Instead, such a statutory

right has already been “negotiated” by the

legislature on behalf of all employees. The

resolution of a legal dispute arising from a

guaranteed statutory right appears to fall outside

the NLRA’s intended scope.

In short, the underlying claims here do not

arise from contractual rights of employment that

have been bargained for in the workplace. The

claims should therefore not be enforceable under the

NLRA.

C. Group Litigation Is Incompatible

With The NLRA’s Purpose Of

Achieving Industrial Peace Through

Group Negotiation In The Workplace.

It is unlikely that Congress intended the

NLRA to apply to litigation of any kind, let alone

group litigation, because “the underlying purpose of

this statute is industrial peace,” achieved through

negotiation and compromise in the workplace.

Brooks v. NLRB, 348 U.S. 96, 103 (1954). See also

Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785

(1996) (“The object of the National Labor Relations

Act is industrial peace and stability, fostered by

collective-bargaining agreements providing for the

orderly resolution of labor disputes between workers

and employers.”) (emphasis added).

12

The NLRA was intended to protect employees’

right of association in the workplace, not in a

courtroom or in arbitration, so that employees could

negotiate their differences with their employer, not

litigate over them. See Charles J. Morris, NLRB

Protection in the Nonunion Workplace: A Glimpse at

A General Theory of Section 7 Conduct, 137 U. Pa. L.

Rev. 1673, 1683, 1685 (1989) (“The purpose of the

Wagner Act, and therefore the purpose of .. . section

7, was to bring to the workplace a legally protected

right of association . . . [which] . . . would be

comparable to the rights of freedom of speech and

association the first amendment guaranteed to

workers in their political lives.”) (emphasis added);

Robert A. Gorman and Matthew W. Finkin, The

Individual and the Requirement of “Concert” Under

the National Labor Relations Act, 130 U. Pa. L. Rev.

286, 343 (1981) (discussing NLRA’s purpose to

establish “civil rights at the workplace”) (emphasis

added).

Group litigation, then, is far removed from the

NLRA’s purpose of protecting group negotiation in

the workplace. It is inherently coercive, and it is

hardly the cooperative process that Congress had in

mind to promote industrial peace. See Morris,

NLRB Protection in the Nonunion Workplace, 137 U.

Pa. L. Rev. at 1682 (discussing statement of Senator

Wagner that NLRA was intended to establish “a

cooperative relationship between workers and

employers,” achieved through “equality of bargaining

power.”). In particular, a class action is at odds with

the NLRA’s purposes because it creates “the risk of

‘in terrorem’ settlements,” Concepcion, 563 U.S. at

350, due to the sheer size of the plaintiff class and

13

the potential damages at stake, quite apart from the

merits of the underlying dispute. See id.

It is doubtful, then, that a class action is the

“strength in numbers” that Congress had in mind

when it declared its intent to protect employees’ “full

freedom of association” for the purpose of

“negotiating” and “bargaining” their differences with

their employer. 29 U.S.C. § 151. And “we resolve

doubts in favor of arbitration.” CompuCredit, 565

U.S. at 109.

D. Under The Rule of Ejusdem Generis,

Section 7’s Residual Phrase “Other

Concerted Activities” Simply Means

That Employees Have The Right To

Join Together In The Workplace For

A Common Cause, But Without

Having To Form A Union Or Engage

In Collective Bargaining.

In light of the NLRA’s clear statement of

purpose, it is already doubtful that § 7’s “right... to

engage in other concerted activities” would include

group litigation. But that proposition becomes even

more doubtful when the catchall phrase “other

concerted activities” is interpreted properly in its

immediate context, not in isolation from the rest of

§ 7. “(I]t is a “fundamental principle of statutory

construction (and, indeed, of language itself) that the

meaning of a word [or phrase] cannot be determined

in isolation, but must be drawn from the context in

which itis used... .” Yates v. United States, 135 S.

Ct. 1074, 1082 (2015) (citation and internal

quotation marks omitted).

14

In particular, § 7 enumerates specific

concerted activities (self-organization; forming,

joining or assisting labor unions; and collective

bargaining) followed bw the residual phrase “other

concerted activities.” And “[iJt is a commonplace of

statutory construction that the specific governs the

general.” NLRB v. SW Gen., Inc., 137 S. Ct. 929, 941

(2017) (citation and internal punctuation marks

omitted). See also Christopher v. SmithKline

Beecham Corp., 567 U.S. 142, 163 (2012) (“[T]he rule

of ejusdem generis [“of the same kind”} should guide

our interpretation of the catchall phrase, since it

follows a list of specific items.”).

And so the meaning of “other concerted

activities” “should itself be controlled and defined by

reference to the enumerated [concerted activities]

which are recited just before it... .” Circuit City

Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001) (§ 1

of FAA, which exempts “contracts of employment of

seamen, railroad employees, or any other class of

workers engaged in foreign or interstate commerce,”

applies only to other similar transportation workers)

(emphasis added). Simply put, “other concerted

activities” should only protect those concerted

6 Again, § 7 provides, in relevant part:

Employees shall have the right to self-

organization, to form, join, or assist labor

organizations, to bargain collectively

through representatives of their own

choosing, and to engage in other concerted

activities for the purpose of collective

bargaining or other mutual aid or protection

29 U.S.C. § 157.

15

activities that are similar in kind to the concerted

activities listed in § 7. See Circuit City, 532 U.S. at

114—15 (discussing same).

And the specific concerted activities in § 7

(self-organization; forming, joining, and assisting a

union; and collective bargaining through elected

union representatives) identify certain formal ways

in which employees can organize in the workplace

and address working conditions with their employer.

When read together, then, these enumerated

concerted activities describe the various stages of an

industrial democracy in the workplace--“a

congressional intent to create an equality in

bargaining power between the employee and the

employer throughout the entire process of labor

organizing, collective bargaining, and enforcement of

collective-bargaining agreements.” NLRB v. City

Disposal Sys. Inc., 465 U.S. 822, 835 (1984). See also

Morris, NLRB Protection In The Nonunion

Workplace, 137 U. Pa. L. Rev. at 1684 (§ 7 was

intended to achieve a “democracy in the workplace”).

And so the residual phrase “other concerted

activities” should be interpreted to protect various

similar ways in which employees can join together in

the workplace for a common cause, but without

having to form a union or engage in collective

bargaining. That is, “other concerted activities”

protects the associational rights of all employees, not

just unions. “A proper construction [of ‘other

concerted activities’] is that the employees shall have

the right to engage in concerted activities for their

mutual aid or protection even though no union

activity be involved, or collective bargaining be

contemplated.” NLRB v. Phoenix Mut. Life Ins. Co.,

16

167 F.2d 983, 988 (7th Cir. 1948). See also NLRB v.

Washington Aluminum Co., 370 U.S. 9, 14 (1962)

(work stoppage by seven nonunion employees was

“other concerted activity” under § 7: “The seven

employees here were part of a small group of

employees who were wholly unorganized. They had

no bargaining representative and, in fact, no

representative of any kind to present their

grievances to their employer. Under these

circumstances, they had to speak for themselves as

best they could.”); Morris, Protection in the Nonunion

Workplace, 137 U. Pa. L. Rev. at 1687 (phrase “other

concerted activities” protects “one or more employees

attempting to interact or make common cause with

one another regarding a matter relevant to their

working conditions. The process may or may not

come to the attention of the employer, and it may or

may not reach the stage of formal union

organizational activity.”).

Group legal action, however, has nothing to do

with the ways in which employees can join together

in the workplace to address working conditions.

“Had Congress intended the latter all encompassing

meaning, .. . it is hard to see why it would have

needed to include the examples at all.” Yates, 135 S.

Ct. at 1086 (citation and internal quotation marks

omitted). To interpret “other concerted activities” as

broadly as the employees and the NLRB assert

would render superfluous Congress’ careful

enumeration of the concerted activities in § 7. And

“[wle typically use ejusdem generis to ensure that a

general word will not render specific words

meaningless.” Jd. at 1087 (citation and internal

quotation marks omitted).

17

E. Congress Chose The Phrase

“Concerted Activities,” Not

“Concerted Action,” Indicating An

Intent To Protect The Right To

Engage In Certain Conduct, Not The

Right To Sue.

Notably, Congress chose the phrase “concerted

activities” in § 7, which indicates conduct, not

litigation. Congress did not use the phrase

“concerted action,” which could include litigation.

In particular, when Congress wants to protect

or proscribe certain conduct, it generally uses the

word “activity,” as it has done here.? But when

Congress wants to create a right to sue, it generally

uses the word “action,” whether by itself or in such

phrases as “civil action” or “cause of action.”® And in

some instances, Congress has used both words--

“activity” and “action”--in the same statutory section,

precisely to distinguish between the conduct that is

being regulated (the “activity”) and the right to sue

7 See, e.g. 18 U.S.C. § 1962(a) (“Prohibited Activities”) (RICO

statute proscribes conduct related to “racketeering activity”)

(emphasis added); 8 U.S.C. § 1182(a)(3)(B) (“Terrorist

activities”) (prohibiting issuance of visas to anyone engaged in

“terrorist activities”) (emphasis added).

8 See, eg., 42 U.S.C. § 2000e-5(f)(1) (“a civil action may be

brought against the [employer]” for workplace discrimination)

(emphasis added); 15 U.S.C. § 78u-6(h)(1)(B)G) (“Cause of

action”) (Dodd-Frank whistleblower “may bring an action” for

retaliatory employment decision) (emphasis added); 42 U.S.C.

§ 3613(a)(1)(A) (“Civil Action”) (“An aggrieved person may

commence a civil action” for discriminatory housing practices)

(emphasis added).

18

over that regulated conduct (the “action”).2 In short,

interpreting the word “activity” to embrace legal

action is inconsistent with Congress’ own use of that

word. It is therefore a strained and unpersuasive

reading of § 7.

This point is reinforced by the fact that the

NLRA does not provide employees with a private

right of action against their employer. Instead,

Congress delegated exclusive enforcement powers to

the NLRB to pursue claims of unfair labor practices.

See 29 U.S.C. § 160(a) (“Powers of Board generally”)

(“The Board is empowered . . . to prevent any person

from engaging in any unfair labor practice ....”). It

is doubtful, then, that Congress would have intended

the term “other concerted activities” to include group

legal action when Congress did not even deem it

necessary to allow employees to sue individually, on

their own behalf.

9 See, eg, 15 U.S.C. § 1125(a)(1)(A)-(B) (“Civil Action”)

(Lanham Act provides “civil action” for unfair competition

through misleading advertising or labeling pertaining to

“goods, services, or commercial activities”) (emphasis added); 28

U.S.C. § 1605(a)(2) (“A foreign state shall not be immune from

the jurisdiction of courts of the United States or of the States in

any case... in which the action is based upon a commercial

activity carried on in the United States ... .”) (emphasis

added).

19

F. When Understood In Its Historical

Context, The NLRA’s Protection Of

“Concerted Activities” Simply Meant

That It Was No Longer ILlegal For

Employees To Act In Concert To

Address Their Working Conditions.

The Court has instructed that the NLRA

should be understood in its historical context, “[so

that] we may, by such an examination, reconstitute

the gamut of values current at the time when the

words were uttered.” Natl Woodwork Mfrs. Ass’n v.

NLRB, 386 U.S. 612, 620 (1967) (quotation and

internal quotation marks omitted).

Before the NLRA’s passage, any concerted

efforts by employees to address working conditions

would have been illegal “merely because they [were]

undertaken by many persons acting in concert.” Int'l

Union, U. A. W., A. F. of L., Local 232 v. Wisconsin

Employment Relations Bd., 336 U.S. 245, 258 (1949)

(emphasis added) (overruled on other grounds by

Lodge 76, Intl Ass’n of Machinists & Aerospace

Workers, AFL-CIO v. Wisconsin Employment

Relations Comm’n, 427 U.S. 132 (1976)).

The NLRA simply reversed the historical

meaning of “concerted activities”--i.ec., legally

prohibited group conduct--to legally protected group

conduct. This had nothing to do with creating a new

right of group legal action and everything to do with

permitting employees to engage in collective

workplace efforts to address the terms and

conditions of their employment.

In the years preceding the NLRA’s passage,

20

employees had been prohibited from acting “in

concert” to address working conditions, such as by

organizing, striking, or picketing. “Thfe] history [of

§ 7] begins in the early days of the labor movement,

when employers [successfully] invoked the common

law doctrines of crimi: ul conspiracy and restraint of

trade to thwart workers’ attempts to unionize.” City

Disposal Sys., 465 U.S. at 834. Any such efforts to

address working conditions, “although lawful if

pursued by a single employee, became unlawful

when pursued through the ‘conspiracy’ of concerted

activity.” Jacksonville Bulk Terminals, Inc. v. Int!

Longshoremen’s Ass'n, 457 U.S. 702, 716 (1982)

(discussing legislative history of Norris-LaGuardia

Act of 1932, a predecessor labor statute to NLRA)

(emphasis added).

In the labor-related statutes that came before

the NLRA, Congress began to remove the legal

barriers that had prevented workers from joining

together, in and around the workplace, to address

their working conditions. To do this, Congress used

the phrases “in concert” and “concerted activities”--

buzzwords of that era that had been associated with

workers’ illegal efforts to combine or conspire in the

workplace--in order to begin reversing the pejorative

meaning of those words.!°

10 “[Congress’] first use of the term “concert” in th[fe labor]

context, came in 1914 with . .. the Clayton Act, which

exempted from the antitrust laws certain types of peaceful

union activities.” City Disposal Sys., 465 U.S. at 834. See also

29 U.S.C. § 52 (Clayton Act prohibits federal courts from

enjoining “any person or persons, whether singly or in concert,

from [organizing, boycotting, striking] . . . or from peaceably

assembling in a lawful manner, and for lawful purposes[.)”)

21

With the NLRA’s enactment in 1935,

Congress made a clean break from the past by

declaring that employees were no longer legally

prohibited from engaging in concerted activities in

the workplace. To the contrary, they now had the

protected legal right to do so. As the Court

explained, not many years after the NLRA’s passage:

The most effective legal weapon

against the struggling labor union

was the doctrine that concerted

activities were conspiracies, and for

that reason illegal. Section 7 of the

Labor Relations Act took this

conspiracy weapon away from the

employer .... No longer can any

state .. . treat otherwise lawful

activities to aid unionization as an

illegal conspiracy merely because

they are undertaken by many persons

(emphasis added).

In 1932, in § 4 of the Norris-LaGuardia Act, Congress again

prohibited federal courts from enjoining employees, “whether

[acting] singly or in concert,” from engaging in various listed

activities, such as participating in a labor organization or a

strike, which occur during a labor dispute. 29 U.S.C. § 104

(emphasis added). The Norris-LaGuardia Act also stated the

broad public policy that “the individual unorganized worker .. .

shall be free from the interference, restraint, or coercion, of

employers . . . in self-organization or in other concerted

activities for the purpose of collective bargaining or other

mutual aid or protection.” 29 U.S.C. § 102 (emphasis added).

See also City Disposal Sys., 465 U.S. at 834-35 (discussing

same). This language, in turn, “was the source of the language

enacted in § 7 [of the NLRA].” Id. at 835.

22

ie ae

acting in concert.

Intl Union, U. A. W., A. F. of L., Local 232, 336 U.S.

at 257-58 (emphasis added).

When viewed in its historical context, then,

“concerted activities” means only that “lawful

individual action should not become unlawful when

engaged in collectively.” Gorman and Finkin, The

Individual and the Requirement of “Concert” Under

the National Labor Relations Act, 130 U. Pa. L. Rev.

at 336. In sum, the NLRA’s deliberate reversal of

the negative historical meaning of “concerted

activities” had nothing to do with creating a new

right of employees to join together and sue their

employer.’ Instead, the NLRA merely removed the

legal barriers that had prevented employees from

joining together in the workplace.

11 In this connection, there was no such thing as a class suit for

damages when the NLRA was enacted in 1935. “It was not

until the promulgation of original Rule 23 and the first Federal

Rules of Civil Procedure in 1938 that law and equity were

merged, and [opt-in] class suits for damages in the United

States first became available... .” William B. Rubenstein, 1

Newberg on Class Actions § 1.13, at 36 (5th ed. 2011).

Similerly, the FLSA’s opt-in collective action provision was not

enacted until 1938. See Pub. L. No. 75-718, § 16(b), 52 Stat.

1069 (1938) (codified at 29 U.S.C. § 216(b)). And, of course, the

“modern [opt-out] class action practice emerged in the 1966

revision of Rule 23.” Ortiz v. Fibreboard Corp., 527 U.S. 815,

833 (1999).

23

II.

NOTHING IN EASTEX V. NLRB SUGGESTS

THAT THE NLRA OVERRIDES THE FAA’S

MANDATE TO ENFORCE CLASS AND

COLLECTIVE ACTION WAIVERS IN

EMPLOYMENT ARBITRATION

AGREEMENTS.

Nothing in Eastex, Inc. v. NLRB, 437 U.S. 556

(1978), suggests that the NLRA creates a

substantive nght of group legal action that displaces

the FAA’s mandate to enforce class and collective

action waivers in employment arbitration

agreements. Eastex did not involve the FAA, did not

concern the NLRA’s “other concerted activities”

language, and it did not involve any judicial action

taken by employees. Instead, that case decided the

unrelated issue whether the purpose of certain

concerted workplace activity constituted “other

mutual aid or protection” under § 7. See 129 U.S.C.

§ 157 (“Employees shall have the right . . . to engage

in other concerted activities for the purpose of

collective bargaining or other mutual aid or

protection ... .”) (emphasis added).

In Eastex, employees wanted to distribute a

union newsletter in the workplace that, among other

things, encouraged employees to write to their state

legislators to oppose incorporation of Texas’ “right-

to-work” statute into the state constitution; criticized

a Presidential veto of an increase in the federal

minimum wage; and urged employees to register to

vote to “defeat our enemies and elect our friends.”

Eastex, 437 U.S. at 558-60. The employer refused to

allow the employees to distribute the newsletter,

asserting that the newsletter was not for their

“mutual aid or protection” because it discussed ways

24

in which employees could “improve their lot as

employees through [political] channels {that were]

outside the immediate employee-employer

relationship.” Jd. at 565.

The Court rejected the employer’s position and

affirmed the NLRB’s decision that the proposed

concerted activity--distribution of the union

newsletter in the workplace--was for the protected

purpose of “mutual aid or protection” under § 7. Id.

at 564-70. The Court based its decision largely on

the NLRA’s broad definition of “employee,” which

“shall include any employee, and shall not be limited

to the employees of a particular employer, unless

this subchapter explicitly states otherwise... .” 29

U.S.C. § 152(3) (emphasis added). The Court

explained that this definition “was intended to

protect employees when they engage in otherwise

proper concerted activities in support of employees of

employers other than their own.” Eastex, 437 U.S. at

564 (emphasis added).

Consistent with this broad statutory definition

of “employee,” the Court held that the NLRA

protected the employees’ concerted activity of

distributing the newsletter in the workplace, even

though the newsletter advocated political activity

taken outside the workplace. Id. at 564-67. The

Court explained that the purpose of that outside

activity was for Eastex employees to act in solidarity

with the rights of fellow employees located

throughout the state of Texas (the “right to work”

statute) and the nation (the federal minimum wage).

Id.

25

To be sure, the Court in Zastex stated, in

passing, that “it has been held [by the NLRB] that

the ‘mutual aid or protection’ clause protects

employees from retaliation by their employers when

they seek to improve working conditions through

resort to administrative and judicial forums... .”

Eastex, 437 U.S. at 565-66. See also id. at 566 n.15

(citing NLRB decisions involving judicial or

administrative action taken by employees).’2 But

this statement is merely dictum to the Court’s

holding that the “mutual aid or protection” clause

can include purposes that are outside the employer's

control, such as the political activity discussed in the

disputed union newsletter. Moreover, the Court

expressly declined to consider whether the cited

NLRB decisions involving judicial or administrative

action would satisfy the “other concerted activities”

requirement. “We do not address here the question

of what may constitute ‘concerted’ activities in this

context.” Jd. at 566 n.15

In short, Kastex does not suggest in any way

that the NLRA displaces the FAA’s mandate to

enforce class and collective waivers in employment

arbitration agreements. Nor does the NLRA contain

a contrary congressional command that overrides the

FAA’s mandate, for all of the reasons that NELF has

discussed above. Therefore, the employees’

arbitration agreements in these consolidated cases

should be enforced according to their terms.

12 Notably, none of the NLRB decisions that the Court cited for

this proposition involved a class or collective action. See

Eastex, 437 U.S. at 566 n.15.

26

For’ the

CONCLUSION

reasons stated above, NELF

respectfully requests that the judgment in the Fifth

Circuit in Murphy Oil should be affirmed, and that

the judgments in the Seventh Circuit in Epic, and in

the Ninth Circuit in Ernst & Young, should be

reversed.

June 16, 2017

Respectfully submitted,

NEW ENGLAND LEGAL FOUNDATION

By its attorneys,

Benjamin G. Robbins

Counsel of Record

Martin J. Newhouse, President

New England Legal Foundation

150 Lincoln Street

Boston, Massachusetts 02111-2504

Telephone: (617) 695-3660

benrobbins@nelfonline.org

27