Bargaining or other mutual aid or protection. This argument is just over one hour. This courts cases revive provide a well trodden path for resolving such claims. Yield in theonly face of a contrary congressional command and the tie goes to arbitration. Applying those principles to section seven, the result is clear that the faa should not yield. Is that a concession that this is a concerted action . I do not know that it is a concession framework,opted that should we assume this is a concerted action . The faa prevailed. I think what you would say, justice kennedy, is the activity protected by section seven gets them to the threshold of the courthouse. Section seven is directed to the workplace, not the courthouse. It protects their right to decide they want to initiate action. The courthouse is not at issue here as i understand it. These employees say we do not object to arbitration, what we oneonone, is the the employee against the employer. The driving force of the nra was the recognition of the nnra was the recognition that there was an imbalance, there was no true liberty of contract. It concerted activity is to be protected against employer interference. Right, justice ginsburg, but it is collective action by the employees and the workforce work does not say in the place, it says for Mutual Benefit and protection. And does not say in the workplace. That is where it is directed. Why is it directed there if it does not say that. We said the opposite. We said employees seeking to improve working conditions should resort to administrative and Judicial Forums, essentially the legislatures and the courthouse is, is covered by the mutual aid or protection clauses. This questioninst and said it was clear the mutual aid or protection clause swept further than the workplace itself as long as the ultimate goals were workplace related, inther you took those goals the workplace or in the agencies or in the courts, it did not matter. It was all covered by section seven. , Justice Kagan, but the keywords are resort to. That is not the issue, is it . At least to me. You can explain this. You started out saying this was an arbitration case. I do not know that it is. I thought these contracts would for bid joint action which could be just two people joining the case in judicial as well as arbitration. Regardless, i am worried that what you are saying is overturning labor law that goes back to fdr, at least, the entire heart of the new deal, what we have here is a statute, two of them, which for years have been interpreted the way Justice Kagan said. They say that they protect the joint joining together those are the words you can have two workers to seek to improve working conditions to resort to administrative or Judicial Forums. So said we exclude cases. That is the savings clause where the contract is in contravention of a statute. The statute protects the worker when two workers join together to go into a judicial or Administrative Forum for the purpose of improving working conditions and the employer all said we will employ you only if you promise not to do that. That is the argument against you, i want to be sure that i did not see i read it, too, we all have. I do not see a way you can win the case, which you certainly want to do, without undermining and changing radically what has gone back to the new deal, that is the interpretation of noras laguardia. I will stop and i would like to listen and hear what your answer to that is. Answer, justice breyer, and i would like to get out along answer, is for 77 years the board did not find anything incompatible about section seven and bilateral arbitration agreements. 2010 when thein general counsel looked at this precise issue. The longer answer is from the very beginning, the most that is been protected is the resort to the forum. When you get there you are subject to the rules of the forum. Decides hecal worker wants to bring a class action on behalf of a handful of fellow employees, he has the right to resort to the courts. When he gets there, if he is confronted by an employer that says wait a second, you do not satisfy numeral city, the employer does not commit an unfair labor practice by raising that argument. You conceding that in these contracts in front of us that they do not forbid two or four fromree going together, approaching a Judicial Forum, asking the judge to hear their case and an arbitration, and of course if it violates some rule of civil procedure other than that, it will be thrown out. Are you conceding that that is the issue . Just as the employer can defense, the employee can raise a defense that you agree to arbitrate. That should be enforceable. When you get to the Arbitration Forum, you should take the rules of the Arbitration Forum as a given. Recognize that this kind no thet, there is employer says you want to work for, you sign in. It is what is called a yellow dog contract. It says all the essential features of the yellow dog, there is no true liberty. That is what the case wanted to exclude. I have two responses to that. They agree that arbitration, as long as it is an original claim is perfectly fine. That is i part of suppose that is one way of asking the question in this case is a bilateral arbitration agreement, something that has been protected by the faa since to do is that seeks preserve what this court has referred to as a fundamental attribute of arbitration, is that really a yellow dog contract . Faa, in it so that the its inception, was meant to deal merchantsins between who said the Arbitration Forum is much less expensive so we want to go there rather than the court. Thats commercial contracts triggered the faa . This court crossed that bridge in circuit city. Nobody was upy, in front of this court saying, by the way, you are wasting your time because section seven is going to strictly prohibit the ability to enter bilateral arbitration. That is not true. Are taking thes position, logically so, that if a union wants to enter arbitration, we have already heard the court speak on this issue, the union can substitute arbitration for Judicial Forum because then the collective body of workers has acted together and contracted together on an equal footing with the employer for that term. The problem i have with this bilateral issue is you seem to be thinking that somehow, the v cannot invalidate a contractual term. The normal contract terms that invalidate contracts sections seven and section eight of the declare a contract and legal if it does a certain thing. That is if it stops an individual from concerted activities. His that starts with is contract is no longer valid, there is nothing to take to the courthouse. What it is doing is stopping you taking activity you are legally entitled to take. A couple things. I am pretty sure the employer and circuit city was not a union employee. The point is circuit city the issue was not raised their. That is my point. If in fact employment agreements were covered by the faa, but they were bilateral, they would be on artful they would be that will be a useful thing to tell the court in circuit city, but no dog park dt that point no dog barke at that point. The afl filed a brief to raise a different issue that it not been briefed. They did not say what are we doing here . Section seven is directly on point. That is because it, and no other context, extends to dictate the rules of forum, and the best example is the board itself to read of course section seven protects the light the rights of employees. Of course they can collaborate with their coworkers to file the unfair labor practices. When they get before the board, the board does not have class action procedures. If that does not create huge problems, that reflects that you get to resort to the courts, the that just reflects that, of course, you get to resort to the the arbiter forum, but youre subject to the rules of the forum. Cases. S take two one is a case where two get together and seek arbitration. When one employee seeks arbitration, but makes it action. Is one case any easier than any other . The sameide both on principle . I think you decide both on the same principle. Requires two things. It requires concerted activity protection. Id and now, if you have two individuals collaborate,ng to thats concerted activity. And then it has to be for mutual activity. Are couple of workers talking off the shop, helping one guy get additional alimony, mutual aid and protection. It might be concerted activity, but its not the latter. Wages . Ose its for their if its for their wages, i think if you have a couple of folks that are doing it in the thats concerted activity, they get to the forum and they get whatever rights to proceed concertedly that are the forum. N if its class action, its arguably harder because you can action and not collaborate with anybody and just, you know, essentially seek class. Esent a do you mean its harder for the employee to prevail . For the employee. Thesorry its harder for employee to prove its concerted activity, but i dont think mybut your case is really first case, is it not . This is not really a class suit origins at least . Or am i wrong . Because theres murphy oil, as well. Here, and three cases i think that, you know, two of them might be more like the class action case and one might activityhe concerted case and obviously, representing all three of the employers, but thats not why im telling you that you dont have to make a distinction between the two. Its really because i think the the section about seven right is it gets you to the courthouse, it gets you to you to theit gets arbitrator. [overlapping speakers] section 102 and act . F the norris you have three guys and they all have thems so we dont question about a class action and whether thats concerted. Is clearly concerted and theyre seeking higher wages so its clearly for their mutual aid and protection so theyre section 7. Er the and then section 102 of the nlga section 7just repeats and then section 103 says and undertakingnow, any or promise in conflict with inentially the language section 7, shall not be enforceable in any court. About that . Any undertaking or promise in rights, with section 7 in other words, any waiver of section 7 rights, shall not be any court. In well, that assumes the conclusion with all respect the only thing it assumes is that this was covered under you yourself said this is concerted and its for mutual aid and protection and once thats true, this language comes in and says because ant a waiver undertaking in section 7 shall not be enforceable. I dont think that thats the read the statute, and i think the reason is that this isnt and i dont think the a traditional bilateral arbitration agreement is as a waiver of a section 7 nlga right. It is just an effort by the employer and the employee to the rules for the forum of arbitration when you and theres nothing sinister about leaving it to bilateral arbitration. To waive aagreement section 7 right. Thats what it is, its saying i right forve this concerted activity, and now i dont. With all due respect, i think that assumes the conclusion. Didnt have a Free Standing right to proceed with class an arbitralin forum. You had a right to go to whatever forum and abide by rulesrules and one of the in the Arbitral Forum is no class action. Could reserve the remainder of my time. Thank you, mr. Clement. Mr. Wall. Mr. Chief justice, may it please the court. I would like to highlight one in what mr. Clement said. No one questions that the flsa employees to forego collective actions. In giving employees the right to the nlra does, not then extend to concerted activities that they have agreed to waive under other federal statutes like the flsa and the faa and for decades, through the 2010 untill counsel memo and five years ago, the board recognized as much. Section 7 were understood as protecting employees from dismissal or retaliation. What about the reality i have in one of these ises, the individual claim 1,800. Arbitrald alone in the forum will cost much more than for one. Tial recovery thats why this is the situation where there is strength in numbers and that was the core nlra. F the there is strength in numbers. Theave to protect individual worker from being in a situation where he cant protect his rights. So justice ginsburg, there theprovisions in arbitration agreements here and they defer that allow for payments of costs and fees, but it justyou thought that resulted in an argument that the employees would be practically vindicate their claims, those are exactly the this courtuments rejected and said bilateral arbitration agreements are enforceable under the plain section 2 of the faa. We didnt have in those cases a third or raised a third statutory provision that a particular action. And any type of action in mutual activity, liked the nlrb or the Norris Laguardiau act but putting that aside, im not sure that the faa a rule of statutory construction. Saying is what youre nlrbs trumps the concerted activities statement that somehow,ess, it stops at the courtroom door, so does your colleague. Do thatknow how you when at least one of these agreements if not all three have confidentiality agreements that prohibit the employers from employers, from combining with other employers. Does that and it stops them from going to the courtroom door, is that an unfair labor act . So justice theres a lot there and let me see if i can unpack a handful of things. Courtdozen times this has faced a claim that some other federal statute overroad the faa. Only when its been a fight between before that statute and provided of action it overrode the faa. Making ofre as to the a contract, which is like a commonaw defense, a state law defense like broader duress, except its federal law cant do this. Justice with all respect this court has always said is there a clear congressional command in the other statute . The faa is clear that these enforced. Ought to be its clear in saying that concerted activity cannot be interfered with. But for the first 77 years, heres what everyone including the board understood that to mean. You can be protected from dismissal or retaliation when you seek class treatment up to courthouse doors or the doors of the forum but once youre inside, you dont have an proceed as ao class, notwithstanding the faa or rule 23 or other federal rules. D. R. Horton was the first to make that move and thats a say foradical move to the first time that the nlra overrides the other statutes and get theres you cant is section 7 doesnt say anything about arbitration or class or collective treatment statutes, other congress didnt delegate to the board the ability to decide arbitration e do we have to go into all this class action business . I mean it seems to me that in of these agreements, the agree that iced to will not proceed concertedly, jointly, just one other person, joining me action and going into arbitration and saying to both together and maybe theres some rule that forbids people from arbitration in triple a. Or something, ive never seen it. Says you cant do the same thing in court. Arbitrationgo to and then the two of you cant get together. Extremeifying it to its case like that, why cant we thats clearly against what labor law, since the 1930s, has said was an unfair labor practice . Cannot, the employer cannot impose such an agreement. Clear, it be simple, would void our classaction, want todont characterize it as a nightmare, but whats wrong with that . The historical premise is just wrong. When you go back to 1935 and you come all the way through the they summarize them as joint legal action or concerted legal activity. Only true if what you mean is the right to go to the forum. Saying, ofhat im course, i havent said im sorry, i wasnt clear perhaps. Saidothing in what i just was that ordinary rules of the courts like rule 20, any other rule of the court, rule 23, you have to be clear, whatever the thes are, they apply and only rule that wouldnt apply says wererule that going to automatically enforce the agreement not to come here. Aside from that, Everything Else would apply. But thats not going to get them where they want to go. Tooaybe it wont, thats bad, but doesnt that resolve this case . I think were on the same page. Take murphy oil. Does it resolve the case or not . Murphy oil just came in and moved to compel individual arbitration. [overlapping speakers] what is stopping the concerted activity is not which whether itsoose, court or arbitration. Where youre stopping the concerted activity is in the very act of saying this can only arbitration, an individual court action. What your adversaries have in resolving this question is if they can have collective activity in arbitration, according to their argument, its harder for them win. But this particular provision is is removinguse it collective activity from both forum, from any whatsoever. Justice again three quick points. They cant satisfy the clear congressional test. Thats assuming that test this situation. Thats right. Where a contract has been invalidated by statute. You try tod even if go to the savings clause, which this court has never done. Why would you need to go there . Just read the nlrb. Because the nlrb doesnt say this. Ng about youve got to go beyond the text. Youve got to say the board can interpret section seven and five ago counselor. I would like you to finish your answer, but i have a would like to get in before your time expires if i could just note that. So just to quickly finish the answer, i think again, the assumes the conclusion, which is it assumes that when tookoard five years ago the concerted activities clause and stretched it for the first goe to cover your ability to pursue the rights granted, collective procedures granted to statute, itother assumes that those procedures that it picked up which in every other context are procedural, it somehow converted to be substantive and nonwaivable and thats the move the board cant make because it cant interpret nlras abbiguty that way in move that wasthe off the table and if you understand section 7 to protect you from retaliation when you seek class treatment, but not to give you an entitlement to proceed as a class in the forum, right everything fits together perfectly fine and these arbitration agreements you becauseerrupt Justice Alito has one. Maybe its a good time for alito. I wanted to know what the governments position is the Norris Laguardia issue. It not before us . Is it so closely tied to the nlra issue that its appropriate for us to decide it . Have an opportunity to brief it . Whats your position on this . Those,ink both of justice. Its not before the court, but frankly, i dont think it matters because i dont think it adds anything. The text is essentially wereical and both statutes understood to coexist comfortably with the faa, and its really only d. R. Horton that read both section 7 and the sections of the Norris Laguardia act to grant the employees something that those statutes had never been thought to grant them, and its that ambiguity thats problem. Maybe Justice Kagan can proceed. If you had a discriminatory arbitration agreement, lets say an arbitration agreement that said that the employer will pay arbitration costs of men but not women, that that would not enforceable. Why not . I think a couple of reasons, Justice Kagan. Cameirst is if that case to the court, i think we would have no trouble concluding that and title 7 laws supply a clear congressional law. Yourehats the case and saying there can be a conflict between statutes and the title 7 would supply a clear congressional command, even though title 7 says absolutely arbitration . Well, again i dont think its a magic words test and we agree with petitioners on that. A clearhave congressional command absent that, you just dont have it in agency 7. Have an agency attempting to supply it. And its not a fundamental attribute heres one understanding. My i continue . One understanding of title 7 says you shall not discriminate section 7 says to the employer, you shall not concertedwith activities such as three guys joining together to bring a suit if they want to. Not at kagan, it is fundamental attribute of arbitration to discrimination on the base of race, age or gender. It is a fundamental attribute of arbitration and this court said it three times to pick the whom you arbitrate and our simple point is this case is at the heartland of the faa. Best at the periphery of the nlra, on the margins of ambiguity and you cant get there. Thank you, mr. Wall. Mr. Griffin. Mr. Chief justice and may it please the court. Is correct rule here for three reasons. First, it relies on precedent, barring enforcement of contracts that interfere with the right of together,to act concertedly to improve their lot as employees. Second, finding individual arbitration agreements unenforceable under the federal arbitration savings clause because they are legal, under the National Labor relations act gives full effect to both statutes. And third, the employers require thisd court for the first time to enforce an arbitration agreement that violates an express prohibition in another coequal federal statute. Mr. Griffin, im not sure i position. Rstand your individuals can agree to long ase disputes so the agreement allows collective correct . On; is that no, your honor. Its a slight variation on that. The boards position is individuals can agree to arbitrate individually, so long as there is a forum in which they can proceed collectively. It doesnt have to be arbitration. It could be judicial. Okay right. Act the agree to agreement requires that they act individually, although to arbitrate, but there is a collective Arbitral Forum, that thats all right . Just theys, have to arbitrate, whether they do it individually or collectively, you cannot that . Ct the boards position is that onthis court has said multiple occasions, that the Arbitral Forum is the equivalent Judicial Forum for effectively vindicating statutory rights. So there are four people who are seeking to get paid in the murphy oil case. For work that they did. If the forum is available to jointly. Roceed right. And the employer agrees to have it done in arbitration, boardsine from the standpoint. Okay so the point is they arbitrationr agreement, waive the right to court . Collectively in so long as they have the right to do it in arbitration. Saidcause this court has on multiple occasions that those two forums are functionally purposes ofor effectively vindicating the rights at issue, its picking like i dont understand i dont understand how thats consistent theseour position that rights cant be waived. It goes back your honor to the position the board takes into account this courts views with respect to the ability to effectively vindicate these rights in an Arbitral Forum. We have said that with respect to individual arbitration. Have we said that with respect arbitration . Well, your honor were talking about a rule here that just stop class or it stops any kind of joint activity. It stops two people proceeding together, it stops collective, class actions or class arbitrations. Excuse me, Justice Alito. You say this rule means three people, employees, cant go to and say pleaseey represent us and well share our information with you . Individualee arbitrations, but you represent all three of us, they could do that. They could do that. Thats collective action. But its not the collective thats protected here. The employeess rights to proceed concertedly. Proceeding concertedly, they have a single attorney, theyre presenting their case, its going to be in three different hearings. But it doesnt allow the choose which type of activities the employees can engage in. Wait a minute, you said to kennedy, i think i might have missed this. Jones, and brown are three employees. Each believes that he has not or somethingme like that. And he goes to the same attorney, all three, and it time, itactly the same wasnt exactly there are differences. So what they want to do is file joint claim. They want to say, our employer the blah, blah, blah because they did not pay us enough. Okay . Identical, but theyre very similar. The can they go together to arbitrator under this agreement . No. No okay. Justice kennedy go to the lawyer in onee this brought action, unless they just use one person . Thats correct but the but the this agreement the question asked is than my question. My question is many of the actionges of concerted can be obtained by going to the same attorney, sure the cases individually, but you see if you prevail, it seems many quite rational for employers to say forget it, we dont want arbitration at all. Think youve done of an advantage. In that event you would have a Judicial Forum. If the employer doesnt want arbitration. I fully understand that, but the point is youre saying that the employers are now constrained in the kind of arbitration agreements they can have. Theyre constrained with respect to limiting employees ability to act concertedly in the same way that, from the National Labore relations act, individual agreements could not be used to require employees to proceed individually in dealing with their employers. Position thatthe the board i think both and mr. Wall emphasized that for 70 odd board was not taking the position that it is now taking, that it was not to bilateral oneonone arbitration . Well with due respect to my colleagues, thats an inaccurate summary of the boards precedent your honor. The boards precedent has always agreementsndividual that require employees to their right waive collectively are violations of the act. Thats what the court upheld in 1940. What did you do with that general counsel memorandum that right can waive the [inaudible] with all due respect to the counsel at the time, that memorandum was never adopted by the board as the law board and, in fact, was explicitly rejected in the subsequentlyon and in murphy oil. Im curious about the point board doesnt allow class proceedings. There must be a reason. Have some explanation for how that can be reconciled wouldour position, but i like to know what it is. Well, its a misnomer to say that the board doesnt allow honor. Roceedings your the way a proceeding under the actonal Labor Relations worked is the board doesnt have independent investigatory authority. What happens is charges are filed. Those charges are filed by employers, employees, individuals. They could be filed by a Group Employees as you want. The general counsel of the board regentshrough the decides whether or not to pursue the complaint, and then the counsel proceeds in the Public Interest to litigate the case administratively. The type of proceeding that lends itself to actions,pt of class but it doesnt stop as many employees as want to and, in the union willy be filing a representative same way very much the that a class representative would be pursuing a class action in court. Question i have is how do you draw a distinction between an agreement precluding class arbitration and all of the other rules of civil procedure that limit the ability of employees to engage in collective litigation . Well, here your honor, we actually have agreement with the side. The boards rule does not require any modification to the class procedures in court. Boards rule says is you cant preclude people from jointly by virtue of an unlawful agreement imposed their employer. You say what is the scope inthe right to engage concerted activity . If thats the case, why would it in abrogate any limitation rules of procedure that predated that . Actment of well, the boards position your honor i want to to take these provisions as they find them. An example. U in your in this courts decision in washington aluminum, were a group of employees who were faced with a frigid workplace. Conditions,to those they walked out. And that activity was held to be protected. That was in 1962. Subsequently in 1970, the healthional safety and act was passed. After the Occupational Safety passed,th act was people had a choice they could either walk out if they were conditions orafe they could jointly file a atition or a claim or complaint with osha. Enacted a subsequently provision that allowed employees to choose a different path to address their workplace terms and conditions of employment. The same is true with the rules,ently enacted whether its 216b. Of the fair labor standards act, whether the federal of rules of civil procedure, these are all means and mechanisms adopted subsequently that employees can choose to use theyre available. So the argument is that rule that restrictions in 23 abrogate section 7 because they were enacted later . Thats not it at all, your honor. Then i dont understand your answer. The answer is people who have section 7 rights are just like theother plaintiff and requirements of rule 23 with respect to numerosity or typicality. Doesnturse, section 7 apply to the ends of the earth. If there are three employees who riot in the streets, they go to else. Ust like everybody what section 7 does and what section 8 does is establish a rules of how employers can deal with employees and one of the things that section 7 and in concert, if you will, is that employers cant as conditions of employment the waivers of rights, and thats all youre saying here . Thats entirely correct your honor. And specifically section 8a1 prohibits interference with the employees exercise. You think all the rules rules of the forums apply . Absolutely. And both sides are in agreement on that, but the question is whether you can resort to, can they stop you from resorting to administrative Judicial Forums . Thats correct. Arbitration, by the way. I just wonder because thats instancesn, are there where, there will be a worker representative going through the areoyer, but there instances where the grievance is a grievance that is shared by people, but not perfectly shared so jones, smith, and brown will the representative and say representative, please lets go youre the arbitrator and represent all three. Certainly your honor. There are many instances where take a grievance with respect to overtime thats not paid to multiple people on the same shift, this courts respect to this all involve arbitration involve multiple parties representative. Lets say the Arbitral Forum the arbitrales of forum says you can proceed canvidually, and you proceed collectively, but only represents more than 50 people. Is that all right under your theory . Rule of the Arbitral Forum and the employee takes the rules of the forum as they find them. To actou have a right collectively, but only if there you . 1 or more of no, your honor. What you have an opportunity to to try to utilize the rules that are available in the the employer intervening through a thats violative. The hypothetical is the have to have you 50. Oh, im sorry, i the question. I thought we were talking about forum itself as rules as opposed to the arbitration agreement. No, the Arbitral Forum has rules just like the federal rules of civil procedure and what youre saying is well once you get into federal court, of follow theve got to rules of the forum and we have Arbitral Forums, as well. Those rulesaying are equivalent. You take the the employee ases the rules of the forum they find them. What is prohibited here under the National Labor relations act an agreement by the employer thats imposed that limits the employees right to take the rules as they find them. Okay. The forumd be okay if said that, its not okay if theres an agreement between the thatyer and the employee limits their right to proceed. While well and why can the Arbitral Forum enforce the you that says basically cannot act collectively if its fewer than 50 people . Because the prohibition in the National Labor relations act in section eightet one runs to interference, restraint or coercion with respect to the rules, with respect to exercise section 7. Nder it doesnt say anything about forums involvement. Most arbitration agreements is. You what the forum if the employeremployee agreement says you shall under thishis Arbitration Forum and those rules say well do arbitration but only if you have more than 51 people because we think its more efficient to have a smaller number arbitrate individually. That would be okay under your position . Honor. Your and what if the rules of the Arbitral Forum say no class arbitration . Your honor, it would be just as though in the analogous circumstances Congress Said there were to be no class court. In the employee, our position is that the employees right to is in the forum, under the rules of the forum. Prohibited is if thats the rule you have not achieved very much because having an agreement that says no class action, no have anbitration, you agreement requiring arbitration before the Arbitration Association which has rules that arbitration. Lass well, the provisions of the National Labor relations act run to is there is there any thetral forum, i know triple a. Allows class arbitration. Ofthe National Academy arbitrators filed a brief, amicus brief your honor supporting the position that the board took in murphy oil and it the circumstances under which in both labor arbitration and employment arbitration, employees are able to proceed in joint collective actions. Ative here, and one anomaly i think you agree that the fair labor standards act, the substantive right comes from, that under the fair labor provides act, which thatny class proceeding, right can be waived . Honor we dont employees respect to who have National Labor relations act rights who also have flsa rights, that there can the right tof proceed jointly. If you imagine it in terms, theres a set of people who have rights under the fair labor standards act. Theres a lesser included subset of people who have rights under the fair labor standards act and the National Labor relations act. And as to that lesser included theres no ability to waive the right in an agreement with an employer to proceed collectively. Do you have a view mr. Griffin as to whether bringing a class action is itself concerted activity by a plaintiff . D yes, your honor. That law is essentially unchallenged here and the boards law is that if an takes action to initiate, to induce, or to group action, that activity aserted understood under section 7 and the board specifically held in weve briefed this in our brief that a class the notion ofthin initiating, inducing, preparing for. Lewis case involved an individual who filed the was joinedn and immediately by a number of other plaintiffs and each of these cases involves concerted activity. Isnt a question of concert here because there were four people involved in filing the murphy oil action. There were two involved in morris and, as i said, lewis was that act. Others in counselor, do you have any contractsw many union provide exclusively for arbitration of disputes, and collective . Ubiquitousfairly term in Union Collective bargaining agreements. And so is this the unusual hasnthere the union negotiated that kind of contract . Well, this involves employees. Theres no union present in those cases your honor and circuit city, while there was an issue up until that faat, whether or not the applied to employment contracts, sos court has decided that now, these individual cases. Involve nonunion members. Exactly. Thank you, counsel. Mr. Ortiz. Mr. Chief justice and may it please the court. By answering a little bit more fully Justice Sotomayors question at the end. Approximately 55 of nonunion contractsployees have that are covered by mandatory arbitration agreements, and that about 60 million people. Employees have nonindividual im sorry, nonclass, noncollective restrictions which represents about 25 million employees. Am i may so this decision in your ther would invalidate agreements covering 25 million employees . Honor. Your if i may respond to a few points of mr. Walls. Seems to be a belief on the employers side that employees to waive section23, rule 20 and 16b rights under the fair labor act, except when the section 7 of the nlra is in the picture somehow creates an anomaly, but thats not the case, your honors. Rulehese others, rule 20, 23 and section 16 create remedial mechanisms, but they substantive rights. Section 7 of the nlra, section laguardia actris create substantive rights, but they create no procedural mechanisms. Nothing really odd about not allowing employees covered section 7 or coercing them in this way. Suggested thell italian colors actually control here. Not. Do conception concerns state law. Was very concerned in particular about the application case. State law in that it was californias unconscionable it tended to target arbitration. Problem with it. Also your honor, although this affecting anhat essential attribute of arbitration was important in that case, that is very different here, as well. Collective arbitration is much traditional in the labor employment context than it is in the consumer context. Anything wrong from your point of view, which taking this case in a very way to everybody, perhaps you just simply read the words, what the cannot stop is joint effort like making a joint claim, nothing to do with class actions, just making a joint claim, resorting to administrative and Judicial Forums for the purpose of making joint claim. An, the contracts seem to be employer effort to stop an employee from doing that because dont allow him to do that either in administrative or forums. Now, end of opinion okay. Now from your point of view does that solve the case or does it just create a lot of problems, is it totally out to lunch or what . No, your honor. We think that would absolutely solve the case correctly. Theres of course statute that has either equally or plainer language which says statute that faahat the faa gives the also takes away, your honor. That same provision of the faa, section two, actually reserves, exception for contracts, for provisions that court hasl and this also said there are two other doctrines. That kind of begs the to figureere trying out if this is illegal. You cant assume that that type of arbitration agreement is and therefore, its covered by a clause that prevents the enforcement of agreements. Tration sure you can, your honor. Section 7 clearly prohibits this kaiser behavior and in steel, this court itself said that such contracts are illegal be enforced by a court. They easily fit within the meaning of the savings clause. Quoted a statute, didnt i . Yes, you did. The language was passed after the arbitration act, wasnt it . Yes, your honor. Cardoza said, in excludeable context, we cases where the contract is in contravention of a statute and thats why Justice Kagan theided the example of discrimination case. So im not quite ready to say complicated. Your honor, im sorry if i suggested that. Section 2 of the faa was taken, inspired by the new york arbitration act, but was taken word for word from the new arbitration act, and then judge cardoza in the new york court of appeals basically said in interpreting that provision in new york, arbitration act near the time when it was enacted by the new York State Legislature that it would not agreements. Illegal and congress was aware of that history and interpretation. Brought to its attention when it was considering the federal arbitration. You on my 50 employee hypothetical . Agree with the nlrb that it is all right to have a areision which says there no class arbitration, unless there are more than 50 people involved . The employer your honor coerce employees into that forum, unless there is an alternative forum available, say the courts, where fewer than 50 employees could proceed. Your answer then that you disagree with the position of the nlrb . I understood them to say that once youre in the forum you have to abide by the rules of the forum and one of the forum that i hypothesized is one saying youve got to have at least 50 can have are you collection action. If thats an arbitration question, youre already out of the courts. So the question is is that a valid agreement or not . Theell, when you get to Arbitral Forum, youre bound by an employerbut when tries to coerce by making it a condition of continued the employeest agree to a set of rules that make collective action and at the same time my point is it doesnt make collective action impossible, it there be at least 51 employees before you can have action. Ve its like the federal rule of civil procedure. Satisfy certain rules like numerosity. Im sorry, your honor. Sorry is so complicated. No, no, no, but so long as alternative where a group of 50, of less than 50 could pursue. Theres no alternative available because youre agreeing to arbitrate, youre agreeing to go to the arbitral and it has certain rules. My point is no you cant engage in collective action if there are fewer than 51 people. Then the employer could not insist on that. All right. The sake of for argument that the employer here has 49 employees. And he gives a contract to the have to that says you arbitrate with me in this forum doesnt have class actions unless there are 50 or more employees. That would be a different claim involved here, wouldnt it . Yes, it would. Be the intent to interfere with collective action. Its earnestume and young that has 5,000 employees, i dont actually know the number. For the sake of argument. Employees. What would be wrong by choosing an Arbitral Forum that limits actions to 50 people . Federal rules say that you have thats biglass numerosity to warrant class treatment. Theres only 20 or 25 employees, a judge could, discretion, say no im not going to have a class action with 25 people. Differencebut the your honor is that under the federal rules you can still have a joint action with two or three, four, five people up to thend as i was assuming hypothetical from the chief rules of ther the Arbitral Forum he was putting forward, it would be either 50 nothing, or one. And no joint activity. Below 50. T activity that was the problem. Your understanding is correct. I just wanted to make sure that i understood your position was different than the position of the nlrb on that. Thank you, your honor. Right its a right to engage in concerted activity, includes the right to have to file a class action in court. Agreement provide, waive that right and require arbitration, even if even if class arbitration is allowed . Or can it not do that . Honor, under section 7, as long as joint legal action is forum in one why . Where do you get that out of the language of the statute . I proceed your honor . Represents an accommodation, if you will, with this courts jurisprudence where this court has said in a series cases that the Arbitral Forum is equivalent to the Judicial Forum. So as long as one can proceed in one or the other, there should violation. On 7 thank you. Thank you, counsel. Mr. Clement you have four minutes remaining. Mr. Chief justice, just a few points in rebuttal. First of all, i just want to emphasize that as justice said, you do have the right to concerted activity in or moree that three employees could decide that they want to go to the Arbitral Forum, and then they would arbitrate individually, but they the same lawyer and the like. Thehat about confidentiality agreements, onch i take puts a damper how jointly these people can proceed . Well, they can proceed very jointly before they get there. The confidentiality agreement is sameoing to stop the lawyer from thinking about the three cases. Mr. Clement, usually, have a right,you the fact that theres one way to over does right left not make it okay if weve taken another 25 ways of exercising the right, you know. When we think about the first say we canwe dont ban leafletting because you can an op ed. Te and the same thing applies here. The fact that theres something left over by way of concerted activity does not make it okay toer section 7 and section 8 deprive employees of many other activity. Rotected well, your honor im not sure you should blame me for that, i understood the colloquy with alito, thats exactly their position. As long as theres an avenue for thatsed activity open good enough and i did want to mention theres another avenue for concerted activity, which is the three employees can go to and Hour Division of the Labor Department and the wage and Hour Division if it thinks theres a problem can wont beaction that subject to the arbitration agreement under this courts decision. Mr. Clement, these are related questions, which is how does an employee with these confidentiality agreements or even with this agreement in place, how are they able to pattern or practice or disparate treatment cause of action . Employersn to me why ofld prefer an arbitration 100 different claims, lets say in a religious accommodation case, where half the arbitrators those 50ust honor peoples religious claims and arbitrators say no you dont have to. How are employers and employees helped with such a system . With these individual arbitration claims that have become more recent in modern times, this is not these bilateral arbitration agreements have not been the norm. In morebeen the norm recent times. Wen the court said that werent going to recognize class actions in arbitrations, thats when employers jumped to this. But how do you deal with those considerations . Let me correct what i think is a disagreement between the andof us, which is i think this court said as much in italian colors, bilateral arbitration is actually the only kind of arbitration there was until roughly bazzal, and then thestarted having possibility of class arbitration so the kind of arbitration that congress was trying to protect in 1925 was bilateral arbitration. Well, it was bilateral commercial arbitration. This court again, crossed that bridge in circuit city. You raised a concern about what patternan only bring a and practice case with, you plaintiff . Than one well, you know, the parties really havent briefed that, but that did come up a lot in italian colors because the circuit had a rule that said that you could only bring a practice case pursuant to the class action and try as i might to say that that was a problem with effective only got four votes. So the court seemed to say that that wasnt a sufficient problem. Thank you, your honor. Thank you, the cases are submitted. Courts new term is under way with a new justice. Bench and a on the number of highprofile cases coming up. Those cases,ew find information about the online and clicking on scream court at the top of the page. In his weekly address, the president talks about honoring the american flag. Senator Bernie Sanders delivers response, giving his reaction to the president s budget and tax proposal. My fellow americans, every we celebrate the day americaec