Enforcible under the faa are otherwise invalid of another federal statute. This court case has provided a well introduce case for solving such claims, because of enforcing arbitration agreements as written the faa will only yield nains of a congressional demand and the tie goes to arbitration. Applying those principles, the result is clear the faa should not yield. Is that a concession this is a concerted action . I dont know that it is a concession. If we adopted that premise for the opinion of the court, wouldnt we have to say we assume this is concerted action under the nlra section 7 but the faa prevails . I think what you would say, Justice Kennedy, the concerted activity protected by section 7 at most gets them to the threshold of the courthouse. Section 7 is directed to the workplace not the courthouse and they decide they want to initiate action. Mr. Clement, the courthouse is not at issue here, as i understand it. These employees say we dont object to arbitration but we do objects to is the oneonone, the employee against the employer the drivings for of the nraa was the recognition there was an imbalance, there was no true liberty of contract and why they said in the nraa concerted activity is to be protected against employer interference. Thats right, Justice Ginsberg but collective action the nra in the workplace, it says for the Mutual Benefit and protection. Right. It doesnt say in the workshop. Thats where its directed in every context. Im sorry. Why is it directed there if it doesnt say that . In fact we said the opposite in east tech. We said employees seeking to improve working conditions through resort and administrative and Judicial Forums, essentially the legislators and court houses and agencies is covered by the mutual aid of protection clause. We came up against this question it was very clear the protection clause swept further than the workplace itself. Whether you took those goals, activity to the workplace, in the agencies, in the courts it doesnt matter at all, all covered by section 7. Thats right, just kagan. The key words is report. Theres no right to proceed as a class once you get there. Thats not the issue, is it . At least to me, you can explain this. You started out saying this is an arbitration case. I dont know that it is. I thought these contracts would forbid joint action which could be two people joining a case in judicial as well as arbitration farms, regardless im worried about what youre 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 for years have been sm interpreted the way Justice Kagan did, they protect joining together, joining together, her sxherp interpretation. Cardoza said we exclude cases. Thats 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 employers here all said we will employ you only if you promise not to do that. Thats the argument against you. I want to be sure i didnt see a concepcion, ive read it, too, we all have. I havent seen a way you can in fact win the case you certainly want to do, without undermining and changing radically what is going back to the new dial, that is the interpretation of norris lg and the mlr, has. I will stop and like to listen and i want to hear what your answer to that is. Norris laguardia. The short answer and i want to get out a long answer. They did not find anything compatible about section 7 and bilateral arbitration agreements when the General Council looked at this precise issue. The longer reading is what is protected is the results of the forum and you are subject to the rules of the forum. If an a typical worker decides to bring a class action to a handful of employees. When he gets there if confronted by an employer who says, wait a second, you dont satisfy nume erosty or typicality they dont have that argument. Of course not. Are you conceding these contracts in front of us, they do not forbid two workers or three or four, going together, approaching a Judicial Forum asking a judge to hear theircatitheir case and if it violates a rule of civil procedure it will be thrown out. Are you contending that . Just as an employer can raise a nume erosty defense that would be enforceable. When you get there, you take the rules of the arbitration as given. This applies in every other context. Mr. Clemente, you recognize this kind of crack there is no true bargaining, the employer says, you want to work here, you sign this. Its what is called a yellow dog contract. This has all the essential features of the yellow dog contract. That is there is no true liberty to contract on the part of the employee. Thats what laguardia wanted to exclude. I have two responses to that, justice. The board doesnt take it that far. As long as whats at issue is an individual claim are perfectly fine and perfectly valid. This isnt a principle that says they are so weak they cant withdraw. This is a bilateral arbitration agreement protected from the faa since 1925. Is that really . All it does is protect what this court said on three occasions is a fundamental act of arbitration. Is that really a yellow dog contract . Isnt it show the faa in its inception was meant to deal with bargains between merchants, bargains between merchants who said the Arbitration Forum is much les expensive so we want to go there rather than the court. It was commercial contracts that triggered the faa. Justice ginsberg, this court crossed that bridge in circuit city. What i find so remarkable, in circuit city, nobodyy not the aflcio or anybody else was up in front of this court saying, by the way, youre sort of wasting your time because the nra will strictly limit bilateral arbitration. Thats not true, mr. Clemente. Your adversaries are wants to e arbitration we have heard the court speak on this issue. The union can substitute arbitration for Judicial Forum. Because the collective body of workers has acted together and contracted together on equal footing with the employer for that term. The problem that i have with this by lateral issue, is you seem to be thinking that somehow the nlrb cant invalidate a contractual term concepts like for fraud, di resz. The normal contract terms that invalidate contracts. Section 7 and section 8 of the nrlb declare a contract illegal if it does a certain thing. And that is if it stops and an individual if concerted activity. What that starts with is this contract is no longer valid. Theres nothing to take to the courthouse. If what is it doing is stopping you from taking activity that youre legally entitled to take. A couple of things chl first of all i have to double check. Im sure the employer was not a union employee. In all events i think the point is circuit city said. This issue wasnt raised there. Thats my point. If in fact employment agreements were covered by the faa, but if they were by lateral they would be unlawful. That would have been a useful thing to tell the court in circuit city. No dog barked at that point. In the gill ner case where you were dealing with employment issue, and a collective action provision. The filed its own brief to raise a different issue that hadnt been briefed. The issue decided in circuit city. They didnt say what are we doing here. Zebs 7 is on point. That is because the nrla in no other context extends beyond the workplace to dictate the rules. The best example is the board itself. Of course section 7 protects the right of employees to file an unfair labor practice before the board. Of course they can collaborate with coworkers to foir the unfair labor practice. When they get before the board the board doesnt have class action procedures. That doesnt create huge problem. That reflects that of course you get to resort to the court. The forum. Or the regulatory forum. Lets say 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. Theres one case in easier than the other . Do we decide both on the same principle. I think you decide both on same principal. Section 7 requires two things. Concerted activity for mutual aid and protection. Now if you have two individuals that are trying to collaborate. Thats concerted activity. And it has to be mutual activity. If workers are talking off the shop and helping a guy bet additional alimony. Thats not additional. If its for wages. If you have a couple folks doing it in the workplace thats concerted activity. They get whatever rights to proceed concertedly available in the forum. If its class action its arguably harder. You can file a class abs and not collaborate with anybody. And essentially seek to represent a class. Its hoard for employer to prevail. The the employee. To prove it is concerted activity. Your case is my first case. Is it not . This is not a class suit in origin at least. Or am i wrong . Theres murphy oil as well. Two cases might be the class action case. Sdp one mike the concerted activity case. Im obviously representing all three employers. Thats not why im telling you you dont have to make a distinction. It gets you to the courthouse it gets you to the board. To the arbitrator. What about section 102 and 103. Lets take Justice Kennedys example. Three guys and all join claims. So we dont have the question about class action and whether thats concerted. This is clearly concerted. And seeking higher wages. Its clearly for their mutual aid and protection. So theyre covered under section 7. Then section 102 of the nlga repeats section 7. And then section 103 says im quoting now. Any under taking or promise in conflict with essentially the language in section 7. Shall not be enforceable in any court. So what about that. Any under taking or promise in con applicant with section 7 rights. In other words any waiver of section 7 rights shall not be enforceable in any court. That is assumes the conclusion with all respect. Which is. The only thing that assumed this was covered under section 7. You yourself said this is concerted. And mutual protection. Once thats true, the language comes in. And says forget about a waiver. Because under taking in con applicant with section 7 shall not be enforceable. I dont think that thats the way to read the statute. I think the reason is that this isnt, i dont think the way to see a traditional arbitration agreement is a waiver of section 7 right or nlga. Its an effort by the employer and the employee to agree to set the rules for the forum of arbitration. When you get there. Theres nothing sinister about leaving it to by lateral 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. Now i dont. With all due respect, i think thats assumes the conclusion. You didnt va Free Standing right to proceed with class arbitration. You had right to go to whatever forum and abide by the rules sdp one of the rules is no class action. If i could reserve the remainder of my time. Thank you. Mr. Clemt. Mr. Wall . Id like to highlight one point. No one questions if the flsa permits employees to forgo collection action and arbitrate. In given employees the right to act in concert. It doesnt extend to concerted activity they have validly agreed to waive under other federal statutes. For decades through the 2010 general counsel memo. And five years ago. The board recognized as much section 7 and 8 were understood as protecting employees from dismissal or retaliation. What about the reality. We have one of the cases the individual claim is 1,800. To proceed alone in the arbitration form would cost much more. Than any po entshl recovery. Thats why this is a situation where there is strength in numbers. That was the core idea of the nrla. Theres strength in numbers. We have to protect the individual worker. From being in a situation where he cant protect his rights. Justice ginsburg, with all respect. There are provisions and defer for costs and fees. Even if you thought resulted in an argument the employee would be practically unable to vindicate claims those are exactly the kinds of arguments the court rejected. And said by lateral arbitration agreements are enforceable under section 2. We didnt have in those cases a third or raised a third statutory provision. That protecting a particular action. Any type of action in mutual aid or concerted activity. But putting that aside, im not sure that the faa is now a rule of statutory construction. Basically what youre saying it the faa trumps the nlrb concerted activity statement. And broadness. That the somehow it stops and say at the courtroom door. So does your colleague. I dont know how you do that when at least one of the 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 are going to the courtroom door, is that unfair labor act . Theres a lot there. Let me see if i can unpack. A half dozen times this court faced a claim that some other federal statute over road. Only when its been a fight between whether that statute and the cause of action it providesed. Over rode the faa. This is more as to the making of a contract. Which is like a state law defense. A common state law defense or fraud or di resz. Federal law saying you cant do in. This court says is there a clear congressional command. The faa is clear the agreements ought to be enforced. Clear in saying concerted activity cannot be interfered with. Thats right. For the first 77 years heres what everyone understood that to mean. You can be protected from dismissal or retaliation when you seek class treatment. Up to the courthouse doors. Once youre inside you dont have an entightment to proceed as a class. Or other federal rules. W thats a radical move. To say for the first time that the over rides statutes. The reason you cant get there is section 7 doesnt say anything about arbitration or class or collective treatment. Unlike other statutes congress didnt delegate the ability to decide which why do we have to dwet into the class action business . In each of the agreements the worker is forced to agree that i will not proceed concertedly, that means jointly. Just one other person. Joining my action with his. And going into arbitration and saying do both together. And maybe theres some rule that forbids people from doing that in arbitration. Triple a or something. I have never seen it. It says you cant do the same in court. You have to go to arbitration and then the two of you cant get together. Simplifying it to the extreme case like that. Why cant we just say thats clearly against what labor law. Since the 1930s. Has said was unfair labor practice. The employee cannot the employer cannot impose such an agreement. That would be simple. Clear it would void the class action. Theres a problem there. Okay. Whats wrong with that . Sdwl the historical promise is wrong. 1935 and come all the way through the cases they summarize in the joint legal action or concerted lael 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. Nothing said was that ordinary rules of the court like rule. Any other rule of the court. Rule 23. You have to be clear. Whatever the rules are they apply. The only rule that wouldnt would be a rule that were automatically going to enforce the agreement not to come here. Aside from that. Everything else would apply. That wont get them where they want to go. Maybe it wont. Thats too bad. Doesnt that resolve the case . I think were on the same page. Murphy oil. Tuz it resolve the case or not . Murphy oil moved to compel individual arbitration. The decision. What is stopping the concerted activity is not that 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. And individual court action. Adversaries have stipulated to in resolving this question is if they can have collective tft in arbitration. The according to 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. Again three quick points. They cant satisfy the clear congressional test. If they stack. Thats assuming it applies in the situation. Where a contract has been invalidated by statute. The savings clause. Why would you need to go there. Nlrb doesnt say anything about this. You have to go beyond the text. The board can interpret section 7 and five years ago lets assume. I have a question. If i could note that. Quickly to finish the answer. I think again the questions assumes the conclusion. Which is it assumes that when the board five years ago took the concerted activity clause and stretched it had for the first time to cover your ability to go pursue the rights granted collective procedures granted to you by statute. It assumes those procedures that it picked up which every other context are procedural. It somehow converted to not waivable. Thats the move the board cant make. It cant interpret the in the face of the faa and federal rules like rule 23. Thats the move that was off the table. If you understand section 7, to protect grow retaliation when you seek class treatment. But not to give you entitlement. Everything facilities together fine and arbitration agreements. Can i interrupt you. Maybe its a good time. I just want to know what the governments position is regarding the act issue. Is it not before us. Is it so closely tied to the nlra issue it is appropriate for us to decide it . Did you have an opportunity to brief it . Whats your position. Both of those i think its not before the court. But frak frankly e dont think it matter it doesnt add anything. The text is essential will identical. And both statutes were were understood to coexist comfortably. Its really only that put them intention by reading both section 7 and the equivalent sections of the act. To grant the employee something that those statutes had never been thought to grant. Its resolving that ambiguity. I take it both you and mr. Clemt agree if you had a discriminatory arbitration agreement. That said the employer will pay the cost of men not women. That would not be enforceable. Why not . I think a couple reasons. The first is if that case came to the court, we would have no trouble concluding that the ada and civil rights supply a clear congressional command. If thats the case. And youre saying there can be a conflict between statutes and title 7. Even though title 7 says absolutely nothing about arbitration. Again i dont think its a magic words test. We agree with te tigsepetitione that. You have an agency attempting to supply it. Its not a fundamental at tribute. You shall not discriminate and shall not enteer fear with three guys joining together to bring a suit if they want to. Its not a fundamental to. Our simple point is this case is at heart land of the faa. It is at best at the nl rbs a on the margins and simply cant get there under the court case. Thank you, mr. Wall. Mr. Griffin. May it please the court. The boards rule is correct for three reasons. First it relies on long standing precedent bars enforcement of contract that intersphere with the right of employees to act together concert tli to improve their employees. Second finding individual arbitration agreements unenforceable under the federal arbitration act savings clause. Because they are legal and gives full effect to both statutes. Third, the employee employers position would require the court for the first time to enforce an arbitration agreement that violates express prohibition and another coequal federal statute. If im not sure i fully u understand your position. Individuals will afwree to arbitrate disputes so long as they the agreement allows collecti collective arbitration is that correct . Individually so long as there is a forum in which they can proceed collectively. It doesnt have to be arbitration. It can be judicial. If they agree the agreement requires they act individually. Although to arbitrate what there is a collective Arbitration Forum chl thats all right. Just they have to arbitrate. Whether they do it individually or collectively. You cannot restrict that. The board position is that as this court said on multiple occasions that the arbitrary form is the equal vent of judicial for vindicating statutory rights. Four people seeking to get paid. In the murphy case. For work they did. If the forum is available to them to proceed jointly, employer agrees to have it done in arbitration. Thats fine. From the board standpoint sgr 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. The two forums are functionally equivalent for purposes of effectively vindicating the rights at issue. Its like picking i dont understand how thats consistent with your position. That these rights cant be waived. It goes back to the position the board takes into account the courts views with respect to the ability to effectively vindicate the rights in an arbitration form. We have sthad with respect to individual arbitration. Have we said that with respect to class arbitration . Your honor were talking about a rule here that doesnt just stop class it stops any kind of joint activity. It stops two people proceeding together. It stops collective. It stops class action. Or class arbitration. Excuse me, you say this rule means three people employees cant go to the same attorney and say represent us. And well share our information with you. We have three individual arbitrations. You represent all three of us they can do that. They could. Thats collective action. Its not the collective action thats protected here. The act protects the employees rights to proceed concertedly. Proceeding concertedly. They have a single attorney and presenting the case. It will be decided in three different hearings. It doesnt allow the employer to choose which type of activity the employees can engage in. I might have missed this. Smith, jones and brown. Are three employees. Each believes that he has not enough over time or something. And goes to the same attorney all three. And it wasnt exactly the same time. It wasnt exactly, there are differences. What they want to do is file a joint claim. They want to say our employer violated because they did not pay us enough. Okay . Theyre not identical. But very similar. Now can they go together to the arbitrator under this agreement. No. No. Okay. 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. Its 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 individual. But if you prevail it seems to me quite rational for Many Employers to say forget it. We dont want arbitration. I dont think you have done employees much advantage. You would have a Judicial Forum. If the employer doesnt want arbitration. I understand that. The point is youre saying that the employers are constrained in the arbitration agreements they can have. Theyre con trained with respect to limiting employees ability to act concert tli in the same way from the beginning of the national act, individual agreements could not be used to require employees to proceed individually in dealing with their employer. What about the position the board i think both mr. Clemt and mr. Wall emphasize that for a 70 odd years the board was not taking the position that it is now taking. It was not objecting to by lateral one on one arbitration. With due respect to my colleagues thats an inaccurate summary of the precedent. The board always said that individual agreements that require employees to individually waive their right to proceed collectively. Violations of the National Labor relations act. Thats what the court held in 1940. You do the general counsel memorandum. That said you can waive the right. 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 jekted. Im course about the point made that the board doesnt allow class proceedings. There must be a reason. You must have explanation for how it can be reconciled with your position. Its a to say the board doesnt allow class proceedings. The way a proceeding under the National Relations act works is the board doesnt have independent Investigatory Authority or ability to initiate suits on its own. What happens is charges are filed. Thoesz charges are filed by employers and employees individuals that could be filed by a group of as many employees as you want. The general counsel of the board aking through the region decides whether or not to pursue the complaint and then the general counsel proceeds in the Public Interest to litigate the case administratively. Its not the type of proceeding that lends itself to the concept of class action. But it doesnt stop as many employees as want to. And in fact frequently the union will be finally charged to representative charge. Very much the same way. That a class representative would be pursuing a class action in court. How do you draw this 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. Here your honor, we actually have agreement with the other sitd side. The board rule doesnt require any modification to the class procedures in court. What the boards rule says is you cant procollude people from proceeding jointly by virtue of unlawful agreement imposed by the employer. Whats the scope of the right to engage in concerted activity. If thats the case why would it not ago regrate limitation that predated the enactment of that . The boards position, your honor. You have to take the provisions as they find them. Example. In your in this courts decision in washington alum yum. A group of employees were faced with frigid workplace. In response to the conditions they walked out. That was in 19 the activity was held to be protected. That was 1962. Subsequently 1970 the osha act was passed. After the occupation was passed. They could walk out if they were faced with unsafe conditions. Or they could jointly file a petition or claim or complaint with osha. That was a subsequently enacted provision that allowed employees to choose a different path to address their workplace terms and conditions. The same is true with the subsequently enacted rules. Whether its it 16 b of the fair lay br standards act. Rule 23 of the federal rules of civil procedure. All means and mechanisms that were adopted subsequently. That employees can choose to use if theyre available. The argument is that the restrictions in rule 23 aggregate rule 7 buzz they were enacted later. Thats not at all. I dont understand the answer. The answer is people who have section 7 rights are just like in other plaintiff. And requirements of rule 23 with respect to num rosty. Is this one way to think about the question. Of course section 7 doesnt extepid to the ends of the earth. If there are three employees. Who go out jointly rioting in the street. They run up against antiriot laws. And go to jail just like everybody else. What section 7 does and 8 does is establish a set of rules ta deal with how employers can deal with employees. One thing section says in concert you will, is that employers cant demand as conditions of employment the waivers of concerted rights. Thats all youre saying here. Thats entirely correct. And specifically section 8 a 1 prohibits interference with the employees exercise the right. You think the rules apply. The rules of the forums apply. Absolutely. Both sides agree on that. The question is whether you can resort to. Can they stop you from resorting to administrative and judicial. In grievance arbitration. I wonder. Thats very common. Are there instances where probably a worker representative going to the employer. Instapss where the brooechgriev shared by people. Jones smith and brown will go to the representative and say please lets go before the arbitrator and represent all three. Certainly. There are many instances where the union will take a grievance with respect to over time not paid to multiple people on the same shift. This Court Decision with respect to the Steel Workers all involved arbitration situations that involved multiple parties representative. Lets say the forum says the rules of the arbitrary forum says you can proceed individually and collectively. But only if the class represents more than 50 people. Is that all right under your theory . Thats a rule of the the employee takes the rules as they find them. You have a right to act collectively. Only if there are 51 or more of you. No. What you have an opportunity to do is to try and utilize the rules that are available in the forum. Without the employer intervening through a prohibition thats violated. The hypothetical. Is the contract says you have to have 50. Im sorry i misunderstood the question. I thought we were talking about the forum itself has rules. Opposed to the agreement. The forum has rules. Like federal procedure. Once you get into federal court of course you have to follow the rules of forum. We have forums. Those rules are equivalent. You take the employee takes the rules of the forum as they find them. Whats prohibited here is agreement by the employer thats imposed. That limits the employees right to take the rules. Okay. So maybe. Okay if the forum said that. Its not okay if theres an agreement between the employer and employee that limits their right to proceed. While the well. In why can the arbitrary forum enforce the rule that says you cannot act collectively if its fewer than 50 people. Because the prohibition runs to employer in interference restraint or coercion. With respect to the rules with respect to exercise the rights urnds section 7. The employer most arbitration agreements tell you what the forum is. Triple a or something else. If the employer, employee 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. Its more efficient to have a smaller number arbitrate individually. That would be okay under your position . Yes, your honor. It would be just as though in the Congress Said there were to be in 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 thats if thats the rule you havent achieved very much. Instead of having an agreement that says no class action no class arbitration. You have an agreement requiring arbitration before the xyz association. Which has rules that dont allow class arbitration. The provisions of the National Labor relations act run to prohibition. Is there any forum i know triple a allows class arbitration. The National Academy of arbitrators filed a brief in this case. Supporting the position that the board took in murphy oil. And addresses the circumstances under which in both labor arbitration and employment arbitration, employees are able to proceed in joint collective representative action. Theres one anomaly here. You agreed that the fair labor standards act where the right comes from. That under the fair labor standard act which provides for an in class proceeding. That right can be waived. Your honor, we dont agree with respect to employees who have National Labor act rights who have rights that there can be a waiver of the right to proceed jointly. Its if you imagine in mathematical terms theres a set of people who have rights under the fair labor standards act. A lesser included subset of people who have rights under both acts. As to that lesser included set theres no ability to waive the right in agreement with the employer. To proceed correctively. Do you have a view 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. The boards law is that if an individual takes action through 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 fur my oil and we have briefed this. That a class action fits within the notion of initiating inducing, preparing for. In fact the louis case involved an individual who filed a class action and was joined immediately by a number of other plaintiffs. of the 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 mor ris and as i said louis was joined by others. Counsellor, do you have any idea of how many Union Contracts provide for arbitration of disputes individual and collective . It is a fairly ubiquitous term. In Union Collective bargaining agremts. So this is the unusual case where the union hasnt negotiated that kind of contract . This involves individual employees. Theres no union present in the cases. And pursuant to circumstance cut city while there was an issue up until that point wlorn the faa applied to employment contracts. This court decided that. Snou the individual cases involve nine union members. Exact. Thank you, counsel. Nay please the court. Answering little bit the question at the end. Approximately 55 of nonunion employees have contracts that are covered by mandatory arbitration agreements. 60 million people. 23 of the employees have nonindividual, sorry nonjoint nonclass. Noncollective. Which represents 25 million. Id like to respond. The decision in your favor would invalidate the 25 million employees. Yes, your honor. If i may respond to a few points of mr. Wall. There seems to be leaf on the employer side that aplowing employees to waive rule 23, rule 20 and section 16. Under the fair labor standards act. Except when the section 7 and is the in the picture somehow creates an anomaly. Thats not the case. All the other rule 20, 23, and section 16 create remedial mechanisms. And create no exception o to right. Rule 7 and section 2 on the other hand create rights. No procedural mechanisms. Theres not really odd about not allowing employees covered by section 7 or coercing them. In this way. Second, mr. Wall suggested the conception control here. They do not. It concerns state law. This course followed analysis and was very concerned in particular about the application of the state law in that case. It was california doctrine. This court found that it was applied in the cidiscriminate tr manner. 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 simple, simply read the words what the employer cannot stop is joint effort like making a joint claim. Nothing to do with class action. 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 Forum. Suppose end of opinion. Fl your point of view does that solve or case or create problems . Is it totally out to lunch or what . No your honor. We think that would solve the case. Of course theres another statute that has either equally or plainer language which says arbitration agreements will be enforced according to to terms. Does it complicate the case to add that . One step. What the faa gives it takes away. That same provision section 2 actually reserves creatings an exception for contracts that provisions that are illegal. This court also said there are two other doctrines. That begs the question. Were trying to figure out if its illegal. You cant assume that arbitration agreement is illegal. Therefore covered by a clause that prechvents. Sure you can. Section 7 prohibits this behavior. Aid that such contracts are illegal and cannot be enforced by court. They fit within the meaning of the savings clause. I quoted a statute. Didnt i . And it was passed after the arbitration act. Wasnt it . Justice said when in a comparable context, we exclude case ts for the contract is in statute. Thats why justice provided the example of the discrimination case. Im not quite ready to say its more complicated. Your honor. Im sorry if i suggested that. The section 2 of the faa was taken was not just inspired by the new york arbitration act. Taken word for word from the new york arbitration act. And then judge and the new york court of appeals basically said interpreting the provision in new york near the time when it was enacted by the new York State Legislature it would not cover at all illegal agreements. Congress was aware of that history interpretation. In fact the kafs brought to its attention. Where are you on my 50 employee hypothetical. Do you agree that it is all right to have a provision when says there is no class arbitration unless there are more that be 50 people involved . The employer your honor cannot coerce employees into that forum. Unless there is an al ternive forum available. In the court. Where fewer than 50. Is your answer then that you disagree with the position . I understood them to say once youre tht forum you have to abide by the rules. And one of the rules is one thats saying you have to have at least 50 people before you can have a collective action. If its arbitration agreement that means you are out of the courts. So the question is is that a valid agreement or not . When you get to the arbitrary forum. When an employer tries to coerce. That employees agree to a set of rules that make collective action impossible. And at the same time. My point is it doesnt make collective action impossible. It requires there with at least 51 employees before you can have collective action. Its a federal rule civil procedure which says you cannot have a class action whenever you want. You have to satisfy certain rules. Your honor. Sorry its so complicated. So long as theres an alternative available. Where a group of less than 50 people could pursue. Theres no alternative available. Youre agreeing to arbitrate. To go to the forum. It has certain rules. No you cant engage in collective action with fewer than 51 people. In our view, no. The employer cannot insist on that. Lets assume for the sake of argument that the employer here has 49 employees. And gives a contract to the employee that says you have to arbitrate with me in this forum that doesnt have class action unless there are 50 or more. That would be a different claim involved here . Wouldnt it . The intent to interfere with collective action. Lets assume its an earnest young that has 5,000 employees. I dont know the number. For sake of argument. 5,000 employees. What would be wrong by choosing an arbitrator forum that limits class action to 50 people . Federal rules say you have to have a class thats big enough in the number 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 having a class action with 25 people. The difference is that under the federal rules you can still have a joint action with two, three, four, five people. Up to 50. And as i was assuming the hypothetical from the chief justice under the rules of arbitrary forum he was put lg forward. It would be 50 or more or nothing. Or one. No joint activity below 50. Of any kind. Youre understanding is correct. I want to make certain i understood your position was different than the position of the nrlb on that. Thank you, your honor. The right to if the right to engage in concerted activity includes the right to have to file a class action. In federal court. How can an agreement provide that or waive that right and require arbitration even if arbitration is clasds arbitration is allowed . Or can it not do that . Your honor, under section 7, as long as joint legal action is available in one forum. That why . Where do you get that out of the language of the statute. Your honor, its it represents an accommodation if you will. With the courts jurisprudence. In a series of cases the arbitrary forum is e kwif leapt lent to judicial. There should be no violation. You have four minutes remaining. Thank you. Just a few points. First of all i 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 forum and arbitrate individually. But could have the same lawyer and the like. What about the confidentiality agreements which i take it puts a damper on how jointly these people can proceed. They can proceed very jointly before they get there. The confidentiality agreement will not take stop the same lawyer from thinking about the three cases. Usually when you have a right the fact that theres one way to exercise a right left over doesnt make it okay. If we have taken awe way another 25 ways of exercising the right. We think about the First Amendment we dont say we can ban leafletting because you can write an op ed. Same applies here. Theres something left over by way of concerted activity doesnt make it okay under section 7 and 8 to deprive employees of many other means. Of protected activity. Im not sure you should became me for that. Thats the position. Theres another avenue for concerted activity which is three employees can go to the wage an Hour Division and the division if thinks theres a problem can bring an action that wont be subject to the agreement under the Court Decision. That he has are related questions. How does an employee with the confidentiality agreements or with the agreement in place, how are they able to bring a pattern or practice or 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 say no you dont have to. How are employer ands employees helped with such a system . And how with td individual arbitration claims that have become recent in modern times. These agreements have not been the norm. They have been the norm in recent times. When the court said that we werent going to recognize class actions in arbitration. Thats when employers jumped to this. How do you deal with the two policies . We try to deal with them. Let me correct a disagreement. I think in this court said as much, by loot ral arbitration is actually the only kind of arbitration there was until roughly basil. And you have the possibility of clatsz arbitration. The kind of Arbitration Congress was trying to protect in 1925 was by lateral. By lateral commercial arbitration. Cross the bridge in circuit city. You raise a concern about bringing a pattern in practice case with more than one plaintiff. The parties havent briefed that. That came up a lot. The second ser cut had a rule. That said that you can only bring a pattern practice case spurnt to class action. And try adds i might that wasnt a sufficient problem. Thank you, counsel. The cases are submitted. On the u. S. Military presence in. And the death of four American Service members earlier this month. Talks about her piece on the role that Rural Electric coop ratives can play in traps forming the Energy Sector and politics. On education secretary decision to rescind obama era guidance on how colleges and universities handle sexual assault. Watch cspan washington journal live at 7 eastern saturday morning. Join the discussion. Cspan. Where history unfolds daily. In 1979, cspan fts created as a Public Service by americas cabl. Brought to you today by your cable or satellite provider. Now. Another Supreme Court oral argument. From earlier this month. This case questions whether Law Enforcement violated the Fourth Amendment when a group of party goers were arrested in a dc area home that was thought to be vacant. Court will decide whether the Police Officers are covered under qualified immunity. Which would protect them from being held liable for damages in civil proceedings. This oral argument is an hour. Case 15, 1485. The district of colombia vs. Wes by. Mr. Kim. Probable cause is practical standard. It accounts for the prak kal limitations when officers face making decisions. Including the inability to look into the mind of suspects offering innocent explanations for suspicious conduct. Circumstantial evidence that is strong or at least fair. Arrest is rna