Can prevent employees from joining together to file classaction muskets against the company. The court will decide if such contracts violate section seven of the National Labor relations act. This oral argument is just over one hour. This courts cases provide a well tried path for resolving such claims. Because of the clarity that faa lamotte yield in the face of a contrary congressional demand and the tie goes to arbitration. Applying this principle to section seven, the result is clear that the faa should not yield. Is that a concession that this is a concerted action . I dont know that it is a concession. That premiseted for the opinion of the court. I think he would say the concerted activity protected by section seven at most gets them to the threshold of the courthouse. But section seven is directed to. He workplace it protects the right to name a place to decide if they want to initiate action. That is not an issue here as i understand it. Dont object to arbitration, but what we do object to is the one on one. The employee against the employer. And the driver force of the nrra is the recognition that there was an imbalance. If there was no true liberty of contract. So, that is why they said in the nrra concerted activity is to be protected against employee employer interference. That is right, justice ginsburg, but it is collective action by the employees in the workplace. And once they get to their forum say in thes the nrra workplace . For the Mutual Benefit and protection. It does not say in the workplace. That is where it is directed. My is a directed there if it does not say that . In fact, we said the opposite. We said employees seeking to improve working conditions resort through Administrative Forums, essentially the legislatures and the courthouse is in the agencys, there covered by the mutual aid and protection clause. We came up against this question, said it was very clear that the mutual aid and protection clause swept further than the workplace itself as long as the ultimate goals were workplace related. Whether you took those goals in the workplace or in the courts, it in the did not matter. It was covered by section seven. The keywords there are resort. There is no right in section seven to proceed as a class once you get there. Maybe you could explain this. He started out saying this was an arbitration case. I do know that it is. I thought these contracts would forbid joint action. Peopleould be just two joining a case in judicial, as well as arbitration. Regardless, i am worried about 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, the nlra, which for years has been interpreted the way Justice Kagan said. They say they protect the joint, joining together those are the words you could have two workers. To seek to improve working conditions to resort through administrative and Judicial Forums. Ok . So, cardoza said, we exclude cases from arbitration. We exclude cases where the contract is in prevention of a statute. The statute protects the worker n togetherorkers j oioi to go into a judicial or Administrative Forum for the purpose of improving working conditions and the employers 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 epcion,i read conc i read it too. Without undermining and changing radically what has gone back to the new deal, that is the interpretation of laguardia and the nlra. I would like to stop, litsesten, and hear your answer. The short answer, Justice Breyer is that for 77 years, the board did not find anything incompatible about section seven and bilateral arbitration agreements and that includes in General Council at this precise issue. The longer issue is, from the very beginning, the most that has been protected is the resort to the forum, and when you i get there you are subject to the rules of the forum. For example, if an atypical workers decides he wants to bring a class action on behalf of of a handful of fellow employees, he has the right to resort to the courts, but when he gets there, hes confronted by a employer that says, you dont satisfy numeral city or typicality, then the employer does not commit an unfairly the practice by raising that argument. Of course not, but are you conceding that based on his contract in front of us, they do not forbid two workers or three or four from coming together, approaching a judicial fourm, asking the judge to hear their case and of course if it violates some rule of civil procedure other than that it will be thrown out. Are you conceding that is the issue . I dont know which one it violated, but nonetheless. As theissue is, just employer can raise a numeral for the you should take the rules of the Arbitration Forum is a given. This is an every other contexts. You recognize that this kind of contract, there is no true bargaining. The person says, if you want to work here, you sign this. Its what was called a yellow dog contracts. This has all the essential features of a yellow dog contract area there is no true liberty to contract on the part of the employee. Thats what they wanted to exclude. I have two responses. The board doesnt take it that far. They agree that arbitration areements, as long as they partly fine ever be valid, this is an in principle. Its as the employee positions are weak. They cant agree to arbitrate at all. I suppose thats one way of asking the question in this case. Is a bilateral arbitration agreement. Something that has been tacked on the faas allegedly five. It refers to a fundamental attribute of arbitration. Is that really a yellow dog ontract . Arguments between merchants. The Arbitration Forum is much less expensive so we want to go there rather than the court. It was merchants contracts. It triggered the faa. This court cross that bridge in circuit city. In circuit city, not anyone was up in front of the court saying, by the way you are wasting your time here because of section seven and it will strictly prohibited the ability. Your adversaries are taking the 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 nlrv cannot invalidate a contractual term. Just as state law concepts like for fraud, duress, the normal contract terms that validate contracts sections seven and section eight of the nlrb declare a contract illegal if it does a certain thing. That is if it stops an individual from concerted activities. What that starts with is his contract is no longer valid, there is nothing to take to the courthouse. What it is doing is stopping you from taking activity you are legally entitled to take. A couple things. I am pretty sure the employer in circuit city was not a union employee. The point is circuit city the issue was not raised there. 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 unlawful that will be a useful thing to tell the court in circuit city, but no dog barked at that point. The afl filed a brief to raise a different issue that it not been briefed. The issue the court eventually decided in circuit city. 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. That does not create huge problems, that reflects that you get to resort to the courts, the forum, or the Regulatory Forum that just reflects that, of course, you get to resort to the courts, the arbiter forum, but youre subject to the rules of the forum. Lets take two cases. One is a case where two employees get together and seek arbitration. The other is when one employee seeks arbitration, but makes it a class action. Is one case any easier than any other . Do we decide both on the same principle . I think you decide both on the same principle. Section 7 requires two things. It requires concerted activity for mutual aid and protection. Now, if you have two individuals that are trying to collaborate, thats concerted activity. And then it has to be for mutual activity. If a couple of workers are talking off the shop, helping one guy get additional alimony, thats not for mutual aid and protection. It might be concerted activity, but its not the latter. Suppose its for their wages . If its for their wages, i think if you have a couple of folks that are doing it in the workplace, thats concerted activity, they get to the forum and they get whatever rights to proceed concertedly that are available in the forum. If its class action, its arguably harder because you can file a class action and not collaborate with anybody and just, you know, essentially seek to represent a class. Do you mean its harder for the employee to prevail . For the employee. Im sorry its harder for the employee to prove its concerted activity, but i dont think but your case is really my first case, is it not . This is not really a class suit in its origins at least . Or am i wrong . Because it is murphy oil as well. Theres three cases here, and i think that, you know, two of them might be more like the class action case and one might be like the concerted activity 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 way to think about the section seven right is it gets you to the courthouse, it gets you to the board, it gets you to the arbitrator. What about section 102 and 103 of the norris act . You have three guys and they all join claims so we dont have the question about a class action and whether thats concerted. This is clearly concerted and theyre seeking higher wages so its clearly for their mutual aid and protection so theyre covered under the section 7. And then section 102 of the nlga basically just repeats section 7 and then section 103 says and im quoting now, any undertaking or promise in conflict with essentially the language in section 7, shall not be enforceable in any court. So what about that . Any undertaking or promise in conflict with section 7 rights, in other words, any waiver of section 7 rights, shall not be enforceable in any court. Well, that assumes the conclusion with all respect the only thing it assumes is that this was covered under section 7 and you yourself said this is concerted and its for mutual aid and protection and once thats true, this language of norris comes in and says forget about a waiver because an undertaking in section 7 shall in conflict with section 7 shall not be enforceable. I dont think that thats the way to read the statute, and i think the reason is that this isnt and i dont think the way to see a traditional bilateral arbitration agreement is as a waiver of a section 7 right or an nlga right. It is just an effort by the employer and the employee to agree to set the rules for the forum of arbitration when you get there and theres nothing sinister about leaving it to bilateral arbitration. Its an agreement to waive a section 7 right. Thats what it is, its saying i used to have this right for concerted activity, and now i dont. With all due respect, i think that assumes the conclusion. You didnt have a Free Standing right to proceed with class arbitration in an Arbitral Forum. You had a right to go to whatever forum and abide by those rules and one of the rules in the Arbitral Forum is no class action. So if i 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 point in what mr. Clement said. No one questions that the flsa permits the employees to forego collective actions. In giving employees the right to act in concert, the nlra does not then extend to concerted activities that they have validly agreed to waive under other federal statutes like the flsa and the faa and for decades, through the 2010 general counsel memo and until d. R. Horton five years ago, the board recognized as much. Section 7 were understood as protecting employees from dismissal or retaliation. What about the reality i think we have in one of these cases, the individual claim is 1,800. To proceed alone in the Arbitral Forum will cost much more than any potential recovery for one. Thats why this is the situation where there is strength in numbers and that was the core idea of the nlra. There is strength in numbers. We have to protect the individual worker from being in a situation where he cant protect his rights. So justice ginsburg, there are provisions in the arbitration agreements here and they defer that allow for payments of costs and fees, but even if you thought that it just resulted in an argument that the employees would be practically unable to vindicate their claims, those are exactly the kind of arguments this court rejected and said bilateral arbitration agreements are enforceable under the plain terms of section 2 of the faa. We didnt have in those cases a third or raised a third statutory provision that protects a particular action. And any type of action in mutual aid or concerted activity, like the nlrb or the Norris Laguardiau act but putting that aside, im not sure that the faa is now a rule of statutory construction. Basically, what youre saying is the faa trumps the nlrbs concerted activities statement and its broadness, that somehow, it stops at the courtroom door, so does your colleague. I dont know how you do that when at least one of these agreements if not all three have confidentiality agreements that prohibit the employers from talking to other employers, from combining with other employers. If it 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. A halfdozen times this court has faced a claim that some other federal statute overroad the faa. Only when its been a fight between before that statute and the cause of action it provided overrode the faa. This is more as to the making of a contract, which is like a state law defense, a common state law defense like broader duress, except its federal law here saying you 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 agreements ought to be enforced. The nlra isnt. 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 the courthouse doors or the doors of the forum but once youre inside, you dont have an entitlement to proceed as a class, notwithstanding the faa or rule 23 or other federal rules. D. R. Horton was the first to make that move and thats a pretty radical move to say for the first time that the nlra overrides the other statutes and the reasons you cant get there is section 7 doesnt say anything about arbitration or class or collective treatment and unlike other statutes, congress didnt delegate to the board the ability to decide which predispute arbitration do we have to go into all this class action business . I mean it seems to me that in each of these agreements, the worker is forced to agree that i will not proceed concertedly, that means jointly, just one other person, joining me action with his and going into arbitration and saying to both together and maybe theres some rule that forbids people from doing that in arbitration in triple a. Or something, ive never seen it. And it also says you cant do the same thing in court. You have to go to arbitration and then the two of you cant get together. So simplifying it to its extreme case like that, why cant we just say thats clearly against what labor law, since the 1930s, has said was an unfair labor practice . The employee cannot, the employer cannot impose such an agreement. That would be simple, clear, it would void our classaction, which i dont want to 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 cases, they summarize them as joint legal action or concerted legal activity. But thats only true if what you mean is the right to go to the forum. Thats what im saying, of course, i havent said im sorry, i wasnt clear perhaps. But nothing in what i just said 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 rules are, they apply and the only rule that wouldnt apply would be a rule that says were going to automatically enforce the agreement not to come here. That would be a kind of trick. But aside from that, Everything Else would apply. But thats not going to get them where they want to go. Maybe it wont, thats too 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. What is stopping the concerted activity is not which forum they choose, whether its court or arbitration. Where youre stopping the concerted activity is in the very act of saying this can only be an individual arbitration, an individual court action. What your adversaries have stipulated to in resolving this question is if they can have collective activity in arbitration, according to their argument, its harder for them to win. But this particular provision is illegal because it is removing collective activity from both forums, from any forum whatsoever. Justice again three quick points. They cant satisfy the clear congressional test. If you stacked in a layup against thats assuming that test applies in this situation. Thats right. Where a contract has been invalidated by statute. So second even if you try to 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 anything about this. Youve got to go beyond the text. Youve got to say the board can interpret section seven and five years ago counselor. I would like you to finish your answer, but i have a question i 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 question assumes the conclusion, which is it assumes that when the board five years ago took the concerted activities clause and stretched it for the first time to cover your ability to go pursue the rights granted, collective procedures granted to you by some other statute, it 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 the nlras ambiguity that way in the thats the move that was 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, then youre right everything fits together perfectly fine and these arbitration agreements can i interrupt you because Justice Alito has one. Maybe its a good time for Justice Alito. I wanted to know what the governments position is regarding the Norris Laguardia issue. Is it not before us . Is it so closely tied to the nlra issue that its appropriate for us to decide it . Did you have an opportunity to brief it . Whats your position on this . I think both of those, justice. Its not before the court, but frankly, i dont think it matters because i dont think it adds anything. The text is essentially identical and both statutes were understood to coexist comfortably with the faa, and its really only d. R horton that read both section 7 and the equivalent sections of the Norris Laguardia act to grant the employees something that those statutes had never been thought to grant them, and its resolving that ambiguity thats the 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 the arbitration costs of men but not women, that that would not be enforceable. Why not . I think a couple of reasons, Justice Kagan. The first is if that case came to the court, i think we would have no trouble concluding that the ada and title 7 laws supply a clear congressional law. If thats the case and youre saying there can be a conflict between statutes and the title 7 would supply a clear congressional command, even though title 7 says absolutely nothing about arbitration . Well, again i dont think its a magic words test and we agree with petitioners on that. You can have a clear congressional command absent that, you just dont have it in section seven. You have an agency attempting to supply it. And its not a fundamental attribute heres one understanding. I continue . One understanding of may title 7 says you shall not discriminate and section 7 says to the employer, you shall not interfere with concerted activities such as three guys joining together to bring a suit if they want to. Justice kagan, it is not a 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 parties with whom you arbitrate and our simple point is this case is at the heartland of the faa. It is at best at the periphery of the nlra, on the margins of its ambiguity and you cant get there. Thank you, mr. Wall. Mr. Griffin. Mr. Chief justice and may it please the court. The boards rule here is correct for three reasons. First, it relies on longstanding precedent, barring enforcement of contracts that interfere with the right of employees to act together, 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 position would require this 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 fully understand your position. Individuals can agree to arbitrate disputes so long as the agreement allows collective arbitration; is that correct . 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. But if they agree to act the agreement requires that they act individually, although to arbitrate, but there is a collective Arbitral Forum, that thats all right . In other words, just they have to arbitrate, whether they do it individually or collectively, you cannot restrict that . The boards position is that as this court has said on multiple occasions, that the Arbitral Forum is the equivalent of the 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 them to proceed jointly. Right. And the employer agrees to have it done in arbitration, thats fine from the boards standpoint. Okay so the point is they can, in their arbitration agreement, waive the right to proceed collectively in court . So long as they have the right to do it in arbitration. Because this court has said on multiple occasions that those two forums are functionally equivalent for purposes of effectively vindicating the rights at issue, its essentially like picking i dont understand i dont understand how thats consistent with your position that these 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 to class arbitration . Well, your honor were talking about a rule here that doesnt just stop class or it stops any kind of joint activity. It stops two people proceeding together, it stops collective, it stops class actions or class arbitrations. Excuse me, Justice Alito. You say this rule means three people, employees, cant go to the same attorney and say please represent us and well share our information with you . We have three individual arbitrations, but you represent all three of us, they could do that. They could do that. Thats collective action. But its not the collective action thats protected here. The act protects the employees rights to proceed concertedly. Theyre proceeding concertedly, they have a single attorney, theyre presenting their case, its going to be decided maybe in three different hearings. But it doesnt allow the employer to choose which type of activities the employees can engage in. Wait a minute, you said to Justice Kennedy, i think i might have missed this. Smith, jones, and brown are three employees. Each believes that he has not enough overtime or Something Like that. And he goes to the same attorney, all three, and it wasnt exactly the same time, it wasnt exactly there are differences. So what they want to do is file a joint claim. They want to say, our employer violated the blah, blah, blah because they did not pay us enough. Okay . Theyre not identical, but theyre very similar. Now, can they go together to the arbitrator under this agreement . No. No okay. So the answer to Justice Kennedy was they cannot go to the lawyer and have this brought in one action, unless they just use one person . Thats correct. But the but the this agreement the question asked is different than my question. My question is many of the advantages of concerted action can be obtained by going to the same attorney, sure the cases are considered individually, but you see if you prevail, it seems to me quite rational for Many Employers to say forget it, we dont want arbitration at all. I dont think youve done employees much 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 beginning of the National Labor relations act, individual agreements could not be used to require employees to proceed individually in dealing with their employers. What about the position that the board i think both mr. Clement and mr. Wall emphasized that for 70 odd years, the board was not taking the position that it is now taking, that it was not objecting 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 said that individual agreements that require employees to individually waive their right to proceed collectively are violations of the act. Thats what the court upheld in 1940. What did you do with that general counsel memorandum that said you can waive the right [inaudible] with all due respect to the general counsel at the time, that memorandum was never adopted by the board as the law of the board and, in fact, was explicitly rejected in the horton decision and subsequently in murphy oil. Im curious about the point that the board doesnt allow class proceedings. There must be a reason. You must have some explanation for how that can be reconciled with your position, but i would like to know what it is. Well, its a misnomer to say that the board doesnt allow class proceedings your honor. The way a proceeding under the National Labor relations act worked is the board doesnt have any independent investigatory authority. Or ability to initiate. What happens is charges are filed. Those charges are filed by employers, employees, individuals. They could be filed by a group of as many employees as you want. The general counsel of the board acting through the regents decides whether or not to pursue the complaint, and then the general counsel proceeds in the Public Interest to litigate the case administratively. So its not the type of proceeding that lends itself to the concept of class actions, but it doesnt stop as many employees as want to and, in fact, frequently the union will be filing a representative charge in very much the same way that a class representative would be pursuing a class action in court. The other 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 . Show well, here your honor, we actually have agreement with the other side. The boards rule does not require any modification to the class procedures in court. What the boards rule says is you cant preclude people from proceeding jointly by virtue of an unlawful agreement imposed upon them by their employer. You say what is the scope of the right to engage in concerted activity . If thats the case, why would it not abrogate any limitation in rules of procedure that predated the enactment of that . Well, the boards position your honor i want to you have to take these provisions as they find them. Ill give you an example. In this courts decision in washington aluminum, there were a group of employees who were faced with a frigid workplace. In response to those conditions, they walked out. And that activity was held to be protected. Out. That was in 1962. Subsequently in 1970, the Occupational Safety and health act was passed. After the Occupational Safety and health act was passed, people have choice. They could either walk out if they were faced with unsafe conditions or they could jointly file a petition or a claim or a complaint with osha. That was a subsequently enacted provision that allowed employees to choose a different path to address their workplace terms and conditions of employment. The same is true with the subsequently enacted rules, whether its 216b. Of the fair labor standards act, whether its rule 23 of the federal rules of civil procedure, these are all means and mechanisms that were adopted subsequently that employees can choose to use if theyre available. So the argument is that the that restrictions in rule 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 any other plaintiff and the requirements of rule 23 with respect to numerosity or typicality. Of course, section 7 doesnt apply to the ends of the earth. If there are three employees who riot in the streets, they go to jail just like everybody else. What section 7 does and what section 8 does is establish a set of rules of how employers can deal with employees and one of the things that section 7 and section 8 say in concert, if you will, is that employers cant demand as conditions of employment the waivers of concerted rights, and thats all youre saying here . Show less saying here . Thats entirely correct your honor. And specifically section 8a1 prohibits interference with the employees exercise. You think all the rules apply, the 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 and Judicial Forums . Thats correct. And grievance arbitration, by the way. I just wonder because thats very common, are there instances where, there will be a worker representative going through the employer, but there are instances where the grievance is a grievance that is shared by people, but not perfectly shared so jones, smith, and brown will go to the representative and say representative, please lets go , before the arbitrator and you represent all three. Certainly your honor. There are many instances where the union will take a grievance with respect to overtime thats not paid to multiple people on the same shift, this courts decisions with respect to this all involve arbitration situations that involve multiple parties representative. Lets say the Arbitral Forum says, the rules of the Arbitral Forum says you can proceed individually, and you can proceed collectively, but only if the class represents more than 50 people. Is that all right under your theory . Thats a rule of the Arbitral Forum and the employee takes the rules of the forum as they find them. So you have a right to act collectively, but only if there are 51 or more of you . No, your honor. What you have an opportunity to do is to try to utilize the rules that are available in the forum without the employer intervening through a prohibition thats violative. The hypothetical is the contract says you have to have 50. Oh, im sorry, i misunderstood the question. I thought we were talking about the Arbitral 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 course, youve got to follow the rules of the forum and we have Arbitral Forums, as well. And im saying those rules are equivalent. You take the the employee takes the rules of the forum as they find them. What is prohibited here under the National Labor relations act is an agreement by the employer thats imposed that limits the employees right to take the rules as they find them. Okay. It would be okay if the forum said that, its not okay if theres an agreement between the employer and the employee that limits their right to proceed. So while well and why can the Arbitral Forum enforce the rule that says basically you cannot act collectively if its fewer than 50 people . Because the prohibition in the National Labor relations act in section eightet one runs to employer interference, restraint or coercion with respect to the rules, with respect to exercise of rights under section 7. It doesnt say anything about the forums involvement. Most arbitration agreements tell you what the forum is. If the employeremployee agreement says you shall arbitrate this under this particular Arbitration Forum and those rules say well do collective 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 . Yes, your honor. 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 actions in court. The employee, our position is that the employees right to proceed is in the forum, under the rules of the forum. The thing that is prohibited if thats the rule you have not achieved very much because instead of having an agreement that says no class action, no class arbitration, you have an agreement requiring arbitration before the Arbitration Association which has rules that dont allow class arbitration. Well, the provisions of the National Labor relations act run two prohibitions against is there is there any Arbitral Forum, i know the triple a. Allows class arbitration. The National Academy of arbitrators filed a brief, amicus brief your honor supporting the position that the board took in murphy oil and it addresses the circumstances under which in both labor arbitration and employment arbitration, employees are able to proceed in joint collective representative actions. Theres one anomaly here, and i think you agree that the fair labor standards act, the substantive right comes from, that under the fair labor standards act, which provides for any class proceeding, that right can be waived . Well, your honor we dont agree with respect to employees who have National Labor relations act rights who also have flsa rights, that there can be a waiver of the right to proceed jointly. If you imagine it in mathematical 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 both the fair labor standards act and the National Labor relations act. And as to that lesser included set, 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 single named plaintiff . Yes, your honor. That law is essentially unchallenged here and the boards law is that if an individual takes action to initiate, to induce, or to prepare for group action, that that is concerted activity as understood under section 7 and the board specifically held in murphy oil and weve briefed this in our brief that a class action fits within the notion of initiating, inducing, preparing for. In fact, the lewis case involved an individual who filed the class action and was joined immediately by a number of other plaintiffs and each of these cases involves concerted activity. There 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 joined by others in that act. Counselor, do you have any idea of how many Union Contracts provide exclusively for arbitration of disputes, individual and collective . It is a fairly ubiquitous term in Union Collective bargaining agreements. And so is this the unusual case, where the union hasnt negotiated that kind of contract . Well, this involves individual employees. Theres no union present in those cases your honor and pursuant to circuit city, while there was an issue up until that point, whether or not the faa applied to employment contracts, this court has decided that so now, these individual cases. Involve nonunion members. Exactly. Thank you, counsel. Mr. Ortiz. Mr. Chief justice and may it mr. Chief justice and may it please the court. May i begin by answering a little bit more fully Justice Sotomayors question at the end. Approximately 55 of nonunion private employees have contracts that are covered by mandatory arbitration agreements, and that covers about 60 million people. 23 of those employees have nonindividual im sorry, nonjoint, nonclass, noncollective restrictions which represents about 25 million employees. So this decision in your favor would invalidate the agreements covering 25 million employees . Yes, your honor. If i may respond to a few points of mr. Walls. There seems to be a belief on the employers side that allowing employees to waive section 23, rule 20 and section 16b rights under the fair labor standards act, except when the section 7 of the nlra is in the picture somehow creates an anomaly, but thats not the case, your honors. All these others, rule 20, rule 23 and section 16 create remedial mechanisms, but they create no substantive rights. Section 7 of the nlra, section two of the Norris Laguardia act create substantive rights, but they create no procedural mechanisms. Theres nothing really odd about not allowing employees covered by section 7 or coercing them in this way. Second, mr. Wall suggested the italian colors actually control here. They do not. Conception concerns state law. This court was very concerned in particular about the application of the state law in that case. It was californias unconscionability doctrine and this court found that it was described in the discriminatory matter to target arbitration. That was the problem with it. Also your honor, although this court found that affecting an essential attribute of arbitration was important in that case, that is very different here, as well. Collective arbitration is much more traditional in the labor employment context than it is in the consumer context. Is there anything wrong from your point of view, which taking this case in a very unsatisfactory way to everybody, except perhaps you just simply read the words, what the employer 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 that joint claim. Now, the contracts seem to be an employer effort to stop an employee from doing that because they dont allow him to do that either in administrative or Judicial 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 . Show less text no, your honor. We think that would absolutely solve the case correctly. Well, of course theres another statute that has either equally or plainer language which says statute that what the faa gives the faa also takes away, your honor. That same provision of the faa, section two, actually reserves, creates an exception for contracts, for provisions that are illegal and this court has also said there are two other doctrines. That kind of begs the question were trying to figure out if this is illegal. You cant assume that that type of arbitration agreement is illegal and therefore, its covered by a clause that prevents the enforcement of illegal arbitration agreements. Sure you can, your honor. Section 7 clearly prohibits this kind of behavior and in kaiser steel, this court itself said that such contracts are illegal and cannot be enforced by a court. They easily fit within the meaning of the savings clause. Look, i quoted a statute, didnt i . Yes, you did. The language the statute was passed after the arbitration act, wasnt it . Yes, your honor. And justice cardoza said, in a comparable context, we exclude cases where the contract is in contravention of a statute and thats why Justice Kagan provided the example of the discrimination case. So im not quite ready to say its more complicated. Your honor, im sorry if i suggested that. Section 2 of the faa was taken, was not just inspired by the new york arbitration act, but was taken word for word from the new york 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 cover at all illegal agreements. And congress was aware of that history and interpretation. The case was brought to its attention when it was considering the federal arbitration. Where are you on my 50 employee hypothetical . Do you agree with the nlrb that it is all right to have a provision which says there are no class arbitration, unless there are more than 50 people involved . The employer your honor cannot coerce employees into that forum, unless there is an alternative forum available, say the courts, where fewer than 50 employees could proceed. Is your answer then that you disagree with the position of the nlrb . I understood them to say that yes, once youre in the forum you have to abide by the rules of the forum and one of the rules of the forum that i hypothesized is one saying youve got to have at least 50 people before you can have a collection action. If thats an arbitration question, youre already out of the courts. So the question is is that a valid agreement or not . Well, when you get to the Arbitral Forum, youre bound by the clause, but when an employer tries to coerce by making it a condition of continued employment that the employees agree to a set of rules that make collective action impossible and at the same time show less text the same time my point is it doesnt make collective action impossible, it requires that there be at least 51 employees before you can have collective action. Its like the federal rule of civil procedure. You have to satisfy certain rules like numerosity. Im sorry, your honor. Sorry is so complicated. No, no, no, but so long as theres an 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 Forum 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. Lets assume for the sake of argument that the employer here has 49 employees. And he gives a contract to the employee that says you have to arbitrate with me in this forum that doesnt have class actions unless there are 50 or more employees. That would be a different claim than involved here, wouldnt it . Yes, it would. It would be the intent to interfere with collective action. But lets assume its earnest and young that has 5,000 employees, i dont actually know the number. For the sake of argument. 5,000 employees. What would be wrong by choosing an Arbitral Forum that limits class actions to 50 people . Federal rules say that you have to have a class thats big enough in numerosity to warrant class treatment. And arguably if theres only 20 or 25 employees, a judge could, using his or her discretion, say no im not going to have a class action with 25 people. No, no, but the difference your honor is that under the federal rules you can still have a joint action with two or three, four, five people up to 50 and as i was assuming the hypothetical from the chief justice, under the rules of the Arbitral Forum he was putting forward, it would be either 50 or more, or nothing, or one. And no joint activity. No joint activity below 50. 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. And the right its a right to engage in concerted activity, it includes the right to have to file a class action in federal court. How can an agreement provide, waive that right and require arbitration, even if arbitration, even if class arbitration is allowed . Or can if not do that . Your honor, under section 7, as long as joint legal action is available in one forum why . Where do you get that out of the language of the statute . May i proceed your honor . Your honor, it represents an accommodation, if you will, with this courts jurisprudence where this court has said in a series of 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 be no section 7 violation. Thank you. Thank you, counsel. Mr. Clement you have four minutes remaining. Thank you, mr. Chief justice, just a few points in rebuttal. First of all, i just want to emphasize that as Justice Kennedy said, you do have the right to concerted activity in the sense that three or more employees could decide that they want to go to the Arbitral Forum, and then they would arbitrate individually, but they could have the same lawyer and the like. What about the confidentiality agreements, which i take puts a damper on how jointly these people can proceed . Well, they can proceed very jointly before they get there. The confidentiality agreement is not going to stop the same lawyer from thinking about the three cases. Mr. Clement, usually, usually, when you have a right, the fact that theres one way to exercise a right left over does not make it okay if weve taken away another 25 ways of exercising the right, you know. When we think about the first amendment, we dont say we can ban leafletting because you can always write an op ed. And the same thing applies here. The fact that theres something left over by way of concerted activity does not make it okay under section 7 and section 8 to deprive employees of many other means of protected activity. Well, your honor im not sure you should blame me for that, i understood the colloquy with Justice Alito, thats exactly their position. As long as theres an avenue for concerted activity open thats good enough and i did want to mention theres another avenue for concerted activity, which is the three employees can go to the wage and Hour Division of the Labor Department and the wage and Hour Division if it thinks theres a problem can bring an action that wont be 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 bring a pattern or practice or disparate treatment cause of action . And explain to me why employers would prefer an arbitration of 100 different claims, lets say in a religious accommodation case, where half the arbitrators say you must honor those 50 peoples religious claims and the other 50 arbitrators say no you dont have to. How are employers and employees helped with such a system . And how 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. Theyve been the norm in more recent times. When the court said that we werent going to recognize class actions in arbitrations, thats when employers jumped to this. But how do you deal with those two policy considerations . Let me correct what i think is a disagreement between the two of us, which is i think and this court said as much in italian colors, bilateral arbitration is actually the only kind of arbitration there was until roughly bazzal, and then you started having the 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. Okay but again, this court crossed that bridge in circuit city. You raised a concern about what if you can only bring a pattern and practice case with, you know, more than one plaintiff . Well, you know, the parties really havent briefed that, but that did come up a lot in italian colors because the Second Circuit had a rule that said that you could only bring a pattern practice case pursuant to the class action and try as i might to say that that was a problem with effective vindication i only got four votes. So the court seemed to say that that was the most efficient problem. Thank you your honor. Thank you, counsel. The cases are submitted. Ashingtons w journal, live every day with news and issues that impact you. Coming up, well look at the Opioid Crisis and we will talk about the future of iran nuclear agreement. And npr justice correspondent Terry Johnson on attorney general Jeff Sessions recent testimony. Be sure to watch cspans wash journal live at 7 00 eastern this morning. This morning, first lady of Melania Trump presents her inaugural ground to the smithsonians museum of natural history. American history. It begins at 10 a. M. Eastern here on cspan. Are rning, the french French Armed Services minister on her countries collaboration efforts with the International Community to combat terrorism. You can see her remarks live starting at 10 a. M. Eastern over at cspan2. When i first went in, its a long story, but i was barely able to get back to the service. A bunch of them jumped in and there is a picture which im sure you will show of them pulling me out of the lake. You can see my arm was broken and of course, once they pulled me out, they were very happy to the. Because i just finished bombing the place. We got pretty rough. Broke my shoulder. Hurt my knee again. Them. Ook, i dont blame we were in a war. I dont like it but at the same war inhen you are in a your captured by the enemy, you cant expect to have tea. 50 years after his capture, arizona senator john mccain talks about the impact of the vietnam war on his life and the country. Sunday at 6 a. M. And 10 a. M. Eastern. On cspan3. The Second Circuit court of appeals in your city heard the oral argument of out to two of the rod of versus altitude express. Case resolves revolves zarda who alleges he was fired because he revealed he was day to a client. His estate is continuing this suit. His oral argument is one hour and 45 minutes. Good afternoon. Assigned 30s been divided 10 minutes per person. That time may be exceeded depending on how things go during the arguments. Antonio. Ear from mr. Good afternoon, your honor