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

In the Supreme Court of the United States
EPIC SYSTEMS CORPORATION, PETITIONER
v.
JACOB LEWIS
ERNST & YOUNG LLP, ET AL., PETITIONERS
v.
STEPHEN MORRIS, ET AL.
NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
MURPHY OIL USA, INC., ET AL.
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURTS OF APPEALS
FOR THE FIFTH, SEVENTH, AND NINTH CIRCUITS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING PETITIONERS IN NOS. 16-285 AND 16-300
AND SUPPORTING RESPONDENTS IN NO. 16-307
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
MALCOLM L. STEWART
Deputy Solicitor General
ALLON KEDEM
Assistant to the Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTION PRESENTED

Whether arbitration agreements that bar individual
employees from pursuing work-related claims on a collective or class basis limit the employees’ right under
the National Labor Relations Act to engage in “concerted
activities” in pursuit of their “mutual aid or protection,”
29 U.S.C. 157, and whether such agreements are enforceable under the Federal Arbitration Act, 9 U.S.C. 2.

(I)

 TABLE OF CONTENTS

Page
Interest of the United States....................................................... 2
Statutory provisions involved ...................................................... 2
Statement ...................................................................................... 2
Summary of argument ................................................................. 9
Argument:
When parties agree to arbitrate employment-related
claims bilaterally, the FAA requires enforcement of
those agreements.............................................................. 12
A. The NLRA does not preclude enforcement
of an agreement to arbitrate employees’
work-related claims bilaterally .............................. 14
1. Bilateral arbitration agreements should
be enforced absent a specific congressional
command to the contrary ................................. 15
2.  The NLRA does not contain a specific
congressional command precluding
enforcement of plaintiffs’ bilateral
arbitration agreements .................................... 18
B. Enforcing the parties’ arbitration agreements
in these cases, in accordance with the FAA,
would not deprive plaintiffs of any substantive
right conferred by another federal statute........... 25
C. The FAA’s saving clause provides no sound
basis for declining to enforce the parties’
arbitration agreements ........................................... 29
Conclusion ................................................................................... 34
Appendix — Statutory provisions ........................................... 1a

(III)

 IV
TABLE OF AUTHORITIES

Cases:

Page

AT&T Mobility LLC v. Concepcion,
563 U.S. 333 (2011).......................................12, 30, 31, 32, 33
Allied-Bruce Terminix Cos. v. Dobson,
513 U.S. 265 (1995).............................................................. 31
American Express Co. v. Italian Colors Rest.,
133 S. Ct. 2304 (2013) ..................................13, 14, 25, 26, 30
Buckeye Check Cashing, Inc. v. Cardegna,
546 U.S. 440 (2006)................................................................ 2
CompuCredit Corp. v. Greenwood,
565 U.S. 95 (2012) ...................................................... passim
D.R. Horton, Inc., 357 N.L.R.B. 2277 (2012)................ 3, 4, 8
D.R. Horton, Inc. v. NLRB, 737 F.3d 344
(5th Cir. 2013) ........................................................................ 4
DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015) ............. 7
Dean Witter Reynolds Inc. v. Byrd,
470 U.S. 213 (1985)................................................................ 2
Doctor’s Assocs., Inc. v. Casarotto,
517 U.S. 681 (1996).............................................................. 31
Eastex, Inc. v. NLRB, 437 U.S. 556 (1978) ......................... 24
Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20 (1991) ..........................................9, 15, 16, 17, 31
Green Tree Fin. Corp.-Ala. v. Randolph,
531 U.S. 79 (2000) ......................................................... 16, 31
Hoffman Plastic Compounds, Inc. v. NLRB,
535 U.S. 137 (2002).............................................................. 24
J.I. Case Co. v. NLRB, 321 U.S. 332 (1944) ............ 11, 27, 28
Kindred Nursing Ctrs. Ltd. P’ship, No. 16-32
(May 15, 2017) ............................................................... 31, 32
Litton Fin. Printing Div. v. NLRB,
501 U.S. 190 (1991).............................................................. 30

 V
Cases—Continued:

Page

Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614 (1985) ............... 16, 17, 25, 31
Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1 (1983) ...................................................... 12
NLRB v. Alternative Entm’t, Inc., No. 16-1385,
2017 WL 2297620 (6th Cir. May 26, 2017) ...... 19, 21, 23, 24
National Licorice Co. v. NLRB,
309 U.S. 350 (1940)............................................ 11, 27, 28, 29
Preston v. Ferrer, 552 U.S. 346 (2008) ................................ 31
Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477 (1989)............................................ 16, 17, 18, 31
Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974) ....... 15, 16
Shady Grove Orthopedic Assocs., P.A. v. Allstate
Ins. Co., 559 U.S. 393 (2010) .............................................. 26
Shearson/Am. Express Inc. v. McMahon,
482 U.S. 220 (1987)..................................................... passim
Southland Corp. v. Keating, 465 U.S. 1 (1984) ................... 31
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,
559 U.S. 662 (2010).................................................. 11, 12, 30
Wilko v. Swan, 346 U.S. 427 (1953) ..................................... 15
Statutes and rules:
Credit Repair Organizations Act, 15 U.S.C. 1679 et seq. ........17
15 U.S.C. 1679c(a) ........................................................... 17
15 U.S.C. 1679f(a) ...................................................... 17, 18
15 U.S.C. 1679g................................................................ 17
Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq. ..........5
Federal Arbitration Act, 9 U.S.C. 1 et seq. ........................... 2
9 U.S.C. 2............................................................passim, 1a
9 U.S.C. 3............................................................................ 3

 VI
Statutes and rules—Continued:

Page

National Labor Relations Act, 29 U.S.C. 151 et seq............. 3
29 U.S.C. 151 ...................................................................... 3
29 U.S.C. 157 ......................................................passim, 1a
29 U.S.C. 158 .......................................................... 4, 23, 2a
29 U.S.C. 158(a)(1)........................................... 3, 21, 22, 2a
29 U.S.C. 160(a) ................................................................. 3
29 U.S.C. 206 .................................................................... 26
29 U.S.C. 207 .................................................................... 26
29 U.S.C. 216(b) ................................................... 18, 20, 26
Securities Act of 1933, 15 U.S.C. 77a et seq.:
15 U.S.C. 77n.................................................................... 15
15 U.S.C. 77v(a) (1952) .................................................... 15
Securities Exchange Act of 1934, 15 U.S.C. 78a et seq.:
15 U.S.C. 78aa (1970) ...................................................... 16
15 U.S.C. 78o(o) ............................................................... 20
7 U.S.C. 26(n)(2)..................................................................... 19
10 U.S.C. 987(e)(3) ................................................................. 19
12 U.S.C. 5518(b) ................................................................... 19
12 U.S.C. 5567(d)(2) ............................................................... 19
15 U.S.C. 1226(a)(2) ............................................................... 19
15 U.S.C. 1639c(e)(1) ............................................................. 19
18 U.S.C. 1514A(e)(2) ............................................................ 19
22 U.S.C. 290k-11(a) .............................................................. 19
22 U.S.C. 1650a(a) ................................................................. 19
Fed. R. Civ. P.:
Rule 23 .................................................................. 10, 21, 22
Rule 23(a)(1) ..................................................................... 21
Rule 23(a)(2) ..................................................................... 21

 VII
Miscellaneous:

Page

H.R. Rep. No. 1147, 74th Cong., 1st Sess. (1935) ............... 22
S. Rep. No. 573, 74th Cong., 1st Sess. (1935)................ 22, 23

 In the Supreme Court of the United States
No. 16-285
EPIC SYSTEMS CORPORATION, PETITIONER
v.
JACOB LEWIS
No. 16-300
ERNST & YOUNG LLP, ET AL., PETITIONERS
v.
STEPHEN MORRIS, ET AL.
No. 16-307
NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
MURPHY OIL USA, INC., ET AL.
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURTS OF APPEALS
FOR THE FIFTH, SEVENTH, AND NINTH CIRCUITS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING PETITIONERS IN NOS. 16-285 AND 16-300
AND SUPPORTING RESPONDENTS IN NO. 16-307

(1)

 2
INTEREST OF THE UNITED STATES

These cases present the question whether arbitration agreements that bar individual employees from
pursuing work-related claims on a collective or class basis
impermissibly limit the employees’ right under the
National Labor Relations Act (NLRA) to engage in
“concerted activities” in pursuit of their “mutual aid or
protection,” 29 U.S.C. 157, or whether such agreements
instead are enforceable under the Federal Arbitration
Act (FAA), 9 U.S.C. 2. The United States and the
National Labor Relations Board (NLRB or Board) have
responsibility for enforcing the NLRA, and the NLRB
filed a petition for a writ of certiorari in No. 16-307.
STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in the
appendix to this brief. App., infra, 1a-13a.
STATEMENT

1. In 1925, Congress enacted the Federal Arbitration Act, 9 U.S.C. 1 et seq., to “overcome judicial resistance to arbitration.” Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440, 443 (2006). “The preeminent
concern of Congress in passing the Act was to enforce
private agreements into which parties had entered.”
Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221
(1985). The FAA provides that any “written provision
in any maritime transaction or a contract evidencing a
transaction involving commerce to settle by arbitration
a controversy thereafter arising out of such contract or
transaction * * * shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract.” 9 U.S.C. 2. If a suit
is brought concerning “any issue referable to arbitration under an agreement in writing for such arbitration,

 3
the court in which such suit is pending” must, “on application of one of the parties,” stay the proceedings and
refer the matter to arbitration in accordance with the
parties’ agreement. 9 U.S.C. 3.
2. The National Labor Relations Act, 29 U.S.C. 151
et seq., was enacted in 1935 to encourage collective bargaining and to “protect[ ] the exercise by workers of full
freedom of association, self-organization, and designation
of representatives of their own choosing.” 29 U.S.C. 151.
The NLRA provides that “[e]mployees shall have the
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C.
157. An employer that “interfere[s] with, restrain[s], or
coerce[s] employees in the exercise of the rights guaranteed in section 157” has committed “an unfair labor
practice.” 29 U.S.C. 158(a)(1). The National Labor Relations Board “is empowered * * * to prevent any person
from engaging in any unfair labor practice * * * affecting commerce.” 29 U.S.C. 160(a).
In January 2012, the Board ruled that agreements
between individual employees and their employers that
require arbitration of work-related disputes on a bilateral (rather than collective or classwide) basis interfere
with the employees’ right under Section 157 to engage
in concerted activities, in violation of Section 158(a)(1).
D.R. Horton, Inc., 357 N.L.R.B. 2277, 2278-2283. The
Board determined that, “[ j]ust as the substantive right
to engage in concerted activity aimed at improving
wages, hours or working conditions through litigation
or arbitration lies at the core of the rights protected by
Section [157], the prohibition of individual agreements

 4
imposed on employees as a means of requiring that they
waive their right to engage in protected, concerted activity lies at the core of the prohibitions contained in Section [158].” Id. at 2281.
The Board also expressed the view that its ruling did
not conflict with the FAA. The Board stated that its
rationale was not specific to arbitration, and that the
contractual term at issue “would equally violate the
NLRA if it said nothing about arbitration, but merely
required employees, as a condition of employment,
to agree to pursue any claims in court against the
[employer] solely on an individual basis.” D.R. Horton,
357 N.L.R.B. at 2285. The Board also noted that, under
the FAA’s saving clause, see 9 U.S.C. 2 (requiring
enforcement of arbitration agreements “save upon such
grounds as exist at law or in equity for the revocation of
any contract”), arbitration agreements “remain subject
to the same defenses against enforcement to which
other contracts are subject.” 357 N.L.R.B. at 2284.
On review, the Fifth Circuit rejected the Board’s
analysis. D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 360362 (2013). The court held that enforcement of the challenged arbitration agreement would not “deny a party
any statutory right” because “use of class action procedures * * * is not a substantive right” under Section
157. Id. at 357. 1 Judge Graves dissented in relevant
part, explaining that he agreed with the Board’s reasoning. Id. at 364-365.
3. These consolidated cases involve agreements,
signed by individual employees and their employers, in
The Fifth Circuit in D.R. Horton agreed with the Board that an
arbitration agreement constitutes an unfair labor practice to the
extent that it prohibits employees from filing unfair-labor-practice
charges with the Board. 737 F.3d at 364.
1

 5
which the parties have agreed to resolve work-related
disputes through bilateral arbitration.
a. Epic Systems Corporation makes healthcare software. 16-285 (Epic) Pet. App. 1a. In April 2014, it sent
an email to its employees requiring them, as a condition
of employment, to agree to arbitrate all wage-and-hour
claims. The agreement specified that the employees
waived “the right to participate in or receive money or
any other relief from any class, collective, or representative proceeding.” Id. at 2a (emphasis omitted).
Jacob Lewis, an employee who had consented to the
arbitration agreement, filed a federal-court suit against
Epic Systems “individually and on behalf of all others
similarly situated.” Epic Pet. App. 2a, 24a. Lewis alleged
that Epic Systems had violated the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. 201 et seq., and state
law by denying overtime pay to him and other employees. When Epic Systems moved to dismiss the suit and
to compel bilateral arbitration, Lewis argued that the
arbitration agreement was invalid and unenforceable
under the NLRA. Epic Pet. App. 2a-3a. The district court
agreed with Lewis and denied Epic Systems’ motion.
Id. at 24a-29a.
The Seventh Circuit affirmed. Epic Pet. App. 1a-23a.
The court concluded that the “text, history, and purpose” of Section 157 show that it “should be read broadly
to include resort to representative, joint, collective, or
class legal remedies.” Id. at 5a-6a. The court also stated
that, even if Section 157 were ambiguous, the court
would defer to the Board’s determination that the
NLRA “prohibit[s] employers from making agreements
with individual employees barring access to class or collective remedies.” Id. at 7a (citing D.R. Horton). The
court rejected Epic Systems’ contention that the FAA

 6
required enforcement of the agreement. Id. at 12a-23a.
The court concluded that, because Epic Systems’
concerted-action waiver is prohibited by the NLRA,
and because illegality is a “ground[ ] * * * for the revocation of any contract” within the meaning of the FAA’s
saving clause, 9 U.S.C. 2, the waiver is unenforceable
under the FAA’s own terms. Epic Pet. App. 12a-15a.
b. Ernst & Young LLP and its U.S.-based affiliate
(collectively, Ernst & Young) provide accounting services. 16-300 (E&Y) Pet. App. 2a, 43a-44a. Ernst &
Young required its employees, as a condition of employment, to sign a “concerted action waiver” in which they
agreed to arbitrate any legal claims against the company and to do so “only as individuals and in separate
proceedings.” Id. at 2a (internal quotation marks omitted). Despite signing that agreement, two Ernst &
Young employees filed suit in federal court, on behalf of
themselves and others similarly situated, alleging that
the company had improperly denied them overtime
wages in violation of the FLSA and state law. Ibid. The
district court granted Ernst & Young’s motion to compel bilateral arbitration and dismissed the suit. Id. at
43a-67a.
The Ninth Circuit reversed. E&Y Pet. App. 1a-25a.
The court held that the NLRA gives employees a “right
to pursue work-related legal claims together,” and that
Ernst & Young had violated that right by requiring its
employees to resolve their legal claims in separate arbitration proceedings. Id. at 3a; see id. at 3a-11a. The
court held that the FAA “does not dictate a contrary
result” because that statute requires only that arbitration contracts be placed “ ‘on equal footing with all other
contracts,’ ” and the collective-action waiver would contravene the NLRA even if it were not contained in an

 7
arbitration agreement. Id. at 12a (quoting DIRECTV,
Inc. v. Imburgia, 136 S. Ct. 463, 468 (2015)) (citation
omitted); see id. at 12a-14a. The court also characterized the employees’ right to seek redress collectively as
a non-waivable “substantive federal right,” thereby distinguishing it from other cases involving “procedural”
rights that may be limited by agreement. Id. at 15a16a; see id. at 14a-21a.
Judge Ikuta dissented. E&Y Pet. App. 25a-42a. She
explained that, “[i]n determining whether the FAA’s
mandate requiring ‘courts to enforce agreements to arbitrate according to their terms’ has been overridden by
a different federal statute, the Supreme Court requires
a showing that such a federal statute includes an express
‘contrary congressional command.’ ” Id. at 28a (quoting
CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98
(2012)). Because the NLRA does not expressly prohibit
the type of arbitration agreement that is at issue here,
Judge Ikuta would have enforced the agreement as
written. Id. at 34a-38a.
c. Murphy Oil USA, Inc. operates more than 1000
gas stations in 21 States. 16-307 (Murphy Oil) Pet. App.
24a. Murphy Oil required each of its employees and job
applicants to sign a “Binding Arbitration Agreement
and Waiver of Jury Trial” in which the parties waived
their “right to commence, be a party to, or act as a class
member in, any class or collective action” in any judicial
or arbitration proceeding “relating to employment
issues.” Id. at 24a-25a (brackets omitted). In June 2010,
four employees sued Murphy Oil in federal court, alleging FLSA violations. Invoking the arbitration agreement, Murphy Oil successfully moved to dismiss the collective action and to compel arbitration. Id. at 26a-28a.

 8
One of the employees then filed an unfair-laborpractice charge with the Board, and the Board’s General Counsel issued an administrative complaint against
Murphy Oil. Murphy Oil Pet. App. 27a. In October
2014, the Board sustained the charge, reaffirming its
prior decision in D.R. Horton and finding that Murphy
Oil had violated the employee’s right under the NLRA
“to engage in collective action.” Id. at 40a (quoting D.R.
Horton, 357 N.L.R.B at 2286); see id. at 17a-89a. The
Board stated that the NLRA creates “a substantive
right to engage in concerted activity,” and that the challenged arbitration agreement therefore “amounts to a
prospective waiver of a right guaranteed by the NLRA.”
Id. at 43a. The Board also determined that its ruling
did not conflict with the FAA because “the mandatory
arbitration agreement is invalid under Section 2 of the
FAA, the statute’s savings clause,” and because 29 U.S.C.
157 “amounts to a ‘contrary congressional command’
overriding the FAA.” Murphy Oil Pet. App. 44a-46a
(footnote omitted) (quoting CompuCredit, 565 U.S. at
98). Two members of the Board dissented in relevant
part. See id. at 89a-131a (Member Miscimarra); id. at
131a-208a (Member Johnson).
Murphy Oil filed a petition for review, which the
Fifth Circuit granted in relevant part. Murphy Oil Pet.
App. 1a-16a. The court adhered to its precedent in D.R.
Horton, holding that an employer may lawfully require
its employees to agree to pursue all employment-related
claims through bilateral arbitration, rather than through
class or collective actions. Id. at 2a, 7a-8a & n.3.

 9
SUMMARY OF ARGUMENT

Under the FAA, agreements to resolve disputes
through arbitration “shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or
in equity for the revocation of any contract.” 9 U.S.C. 2.
Courts must enforce agreements to arbitrate federal
claims unless the FAA’s mandate has been overridden
by a contrary congressional command or unless enforcing the parties’ agreement would deprive the plaintiff of
a substantive federal right. Neither of those justifications for non-enforcement is applicable here. The parties’ agreements, including their prohibition on classwide or collective proceedings, should therefore be
enforced according to their terms.
A. The FAA’s strong presumption in favor of enforcing arbitration agreements may yield where “Congress
itself ” has overridden that presumption in another statute. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
20, 26 (1991) (citation omitted). In mandating enforcement of agreements to arbitrate a variety of federal
statutory claims, the Court has made clear that statutory authorization to pursue class actions in court for
violations of particular federal laws is insufficient to
override the FAA’s directive that agreements to arbitrate must be enforced.
Although the FLSA authorizes employees to pursue
collective actions in court, that authorization is not
meaningfully different from similar provisions of other
laws that this Court has found insufficient to override
the FAA’s mandate to enforce arbitration agreements
as written. Presumably for that reason, plaintiffs in
these cases have not argued, and the courts of appeals
that ruled in their favor did not suggest, that the
FLSA—the statute under which plaintiffs’ federal

 10
claims arise—overrides the FAA’s directive that their
arbitration agreements should be enforced. Plaintiffs’
argument thus depends on the proposition that the
NLRA’s recognition of a general right to engage in
“concerted activities,” 29 U.S.C. 157, confers greater
rights to pursue FLSA claims collectively than does the
FLSA itself.
In no other context, however, has Section 157 been
construed to expand the availability of class or collective
remedies beyond those that are authorized by the laws
that directly address those issues. Section 157 would
not, for example, allow employees who do not satisfy the
numerosity and typicality requirements of Federal
Rule of Civil Procedure 23 to pursue a class action
against their employer. Similarly here, Section 157
does not supersede the balance struck in the FAA and
FLSA, or expand the range of circumstances in which
collective litigation can go forward.
Nothing in the NLRA’s legislative history indicates
that Congress intended to bar enforcement of arbitration agreements like those at issue here. The legislative
record accompanying bills that became the NLRA mentioned arbitration only briefly, in stating that Congress
had declined to impose mandatory arbitration or to
make the Board an arbitration agency. And while the
NLRB’s reading of ambiguous NLRA language is entitled to judicial deference, the Board’s analysis of the
interplay between the NLRA and the FAA is not.
B. In mandating enforcement of pre-dispute agreements to arbitrate various federal statutory claims, this
Court has often emphasized that an agreement to arbitrate does not entail any surrender of substantive statutory rights. Similarly here, the parties’ arbitration

 11
agreements do not purport to authorize employer conduct that would violate the FLSA’s wage-and-hour provisions, and they do not prevent a successful plaintiff
from recovering (through arbitration) the full relief that
a court could award for an FLSA violation.
Nor does enforcement of the arbitration agreements
deprive plaintiffs of any substantive right under the
NLRA. Although Section 157 unquestionably confers
important substantive rights to organize and to engage
in collective bargaining, the arbitration agreements do
not constrain plaintiffs’ exercise of those rights. Even
assuming that the right to utilize collective disputeresolution mechanisms for FLSA claims is encompassed within Section 157’s residual phrase (“other concerted activities”), there is no evident reason for viewing it as a substantive NLRA right, when it is clearly a
procedural right under the FLSA itself.
This Court’s decisions in National Licorice Co. v.
NLRB, 309 U.S. 350 (1940), and J.I. Case Co. v. NLRB,
321 U.S. 332 (1944), do not support a different conclusion. In those cases, the Court invalidated agreements
between employers and their employees to resolve
work-related disputes on a bilateral basis. But it did so
because the employers had used the agreements as a
basis for refusing to engage in collective bargaining.
The agreements at issue here do not have any analogous
anti-union purpose.
C. The FAA’s saving clause provides no sound basis
for declining to enforce the parties’ arbitration agreements. The FAA’s strong policy in favor of enforcing
arbitration agreements applies equally to the parties’
right to “specify with whom they choose to arbitrate
their disputes.” Stolt-Nielsen S.A. v. AnimalFeeds
Int’l Corp., 559 U.S. 662, 683 (2010). The Seventh and

 12
Ninth Circuits understood the NLRA to prohibit enforcement of agreements to arbitrate work-related disputes
bilaterally. The courts found that to be the sort of
arbitration-neutral rule that the saving clause preserves
because the rule focuses on the requirement of bilateral
arbitration, rather than on the agreement to arbitrate
as such.
This Court’s decisions make clear, however, that the
saving clause does not preserve rules of contract enforceability that would impede the achievement of the FAA’s
objectives, even when those rules are capable of application to contracts other than arbitration agreements.
The Court in AT&T Mobility LLC v. Concepcion,
563 U.S. 333 (2011), applied that principle to hold that a
state-law rule against enforcement of class-action waivers
contained in certain consumer contracts fell outside the
saving clause. For substantially the same reasons, the
saving clause does not encompass the analogous federallaw rule that the Seventh and Ninth Circuits derived
from the FAA.
ARGUMENT
WHEN PARTIES AGREE TO ARBITRATE EMPLOYMENTRELATED CLAIMS BILATERALLY, THE FAA REQUIRES
ENFORCEMENT OF THOSE AGREEMENTS

The FAA establishes a “liberal federal policy favoring
arbitration,” Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24 (1983), the “central” feature of which is a directive that “private agreements to
arbitrate are enforced according to their terms.” StoltNielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662,
682 (2010) (citation omitted). When contracting parties
have agreed to resolve federal claims through bilateral
arbitration, that choice must be honored “unless the

 13
FAA’s mandate has been overridden by a contrary congressional command.” American Express Co. v. Italian
Colors Rest., 133 S. Ct. 2304, 2309 (2013) (Italian Colors)
(citations and internal quotation marks omitted).
Under that approach, the agreements at issue here
must be enforced. Although plaintiffs in these cases
assert causes of action under the FLSA (as well as under
state law), they do not contend that the FLSA itself precludes enforcement of their agreements to arbitrate
those statutory claims. And neither the text nor the history of the NLRA suggests that it gives plaintiffs
greater rights to pursue collective litigation than they
can assert under other sources of law like the FLSA.
Enforcement of plaintiffs’ arbitration agreements would
not deprive them of their substantive right under the
FLSA to proper wage-and-hour compensation, or any
procedural right under the NLRA to invoke whatever
class or collective procedures are otherwise available to
them.
In Murphy Oil, this Office previously filed a petition
for a writ of certiorari on behalf of the NLRB, defending the Board’s view that agreements of the sort at issue
here are unenforceable. After the change in administration, the Office reconsidered the issue and has
reached the opposite conclusion. Although the Board’s
interpretation of ambiguous NLRA language is ordinarily entitled to judicial deference, courts do not defer
to the Board’s conclusion as to the interplay between
the NLRA and other federal statutes. We do not believe
that the Board in its prior unfair-labor-practice proceedings, or the government’s certiorari petition in
Murphy Oil, gave adequate weight to the congressional
policy favoring enforcement of arbitration agreements
that is reflected in the FAA.

 14
More specifically, the Board’s view that the phrase
“other concerted activities” in 29 U.S.C. 157 encompasses participation in collective or class litigation may
reflect a permissible interpretation of that language,
such that an employer might commit an unfair labor
practice by discharging employees who initiated or joined
such suits in accordance with other provisions of law. It
does not follow, however, that Section 157 expands the
range of circumstances in which such litigation can go
forward, by allowing employees who validly waived
their collective-litigation rights under the FLSA to
escape the consequences of that choice. The Board’s
approach fails to respect the FAA’s directive that arbitration agreements should be enforced unless they run
afoul of arbitration-neutral rules of contract validity.
A. The NLRA Does Not Preclude Enforcement Of An
Agreement To Arbitrate Employees’ Work-Related
Claims Bilaterally

The FAA “reflects the overarching principle that
arbitration is a matter of contract.” Italian Colors,
133 S. Ct. at 2309. When parties agree in writing to
resolve disputes through arbitration, the agreement is
“valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of
any contract.” 9 U.S.C. 2. The FAA requires courts to
“rigorously enforce arbitration agreements according
to their terms, including terms that specify with whom
the parties choose to arbitrate their disputes, and the
rules under which that arbitration will be conducted.”
Italian Colors, 133 S. Ct. at 2309 (brackets, citations,
and internal quotation marks omitted). To be sure, “[l]ike
any statutory directive, the [FAA’s] mandate may be
overridden by a contrary congressional command.”
Shearson/Am. Express Inc. v. McMahon, 482 U.S. 220,

 15
226 (1987). But a party resisting enforcement of an arbitration agreement bears the “burden” of showing
“that Congress intended to preclude” enforcement. Id.
at 227.
1. Bilateral arbitration agreements should be enforced
absent a specific congressional command to the
contrary

a. Although the policy in favor of arbitration applies
to both federal- and state-law claims, see, e.g., Gilmer
v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26
(1991), this Court was initially reluctant to enforce
agreements to arbitrate disputes that involved federal
statutory rights. In Wilko v. Swan, 346 U.S. 427 (1953),
the Court considered whether to enforce the parties’
agreement to arbitrate a claim under the Securities Act
of 1933. The Court observed that the Securities Act
contained provisions “conferring jurisdiction” on federal district courts, id. at 433 & n.16 (citing 15 U.S.C.
77v(a) (1952)), and declaring “ ‘void’ ” any agreement
“ ‘to waive compliance with any provision’ of the Securities Act,” id. at 430 (quoting 15 U.S.C. 77n). Based on
those provisions, and on its skepticism of arbitration
and arbitrators, see id. at 435-436, the Court determined that “the protective provisions of the Securities
Act require the exercise of judicial direction to fairly
assure their effectiveness,” id. at 437. The Court thus
held that “the intention of Congress concerning the sale
of securities is better carried out by holding invalid such
an agreement for arbitration of issues arising under the
[Securities] Act.” Id. at 438.
The Wilko Court’s skepticism of arbitration, and its
approach to reconciling the FAA with other federal
statutes, were short-lived. In Scherk v. Alberto-Culver
Co., 417 U.S. 506 (1974), the Court held that the FAA

 16
required enforcement of an agreement to arbitrate a
dispute under the Securities Exchange Act of 1934,
despite a statutory provision giving federal district
courts “exclusive jurisdiction” over such suits. Id. at 514
(quoting 15 U.S.C. 78aa (1970)); see id. at 513-521. In
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Inc., 473 U.S. 614 (1985), the Court explicitly acknowledged that the balance it had previously struck in reconciling the FAA with other federal statutes had been
colored by an inappropriate hostility toward arbitration. Id. at 626-628. And in Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477 (1989), the
Court overruled Wilko, a step the Court described as
necessary “to correct a seriously erroneous interpretation of statutory language that would undermine congressional policy.” Id. at 484.
b. In more recent decisions addressing the enforceability of agreements to arbitrate federal statutory
claims, the Court has asked whether “Congress itself,”
in enacting the statute that created the plaintiff ’s cause
of action, “evinced an intention to preclude” enforcement of the parties’ agreement. Gilmer, 500 U.S. at 26
(citation omitted). “If such an intention exists, it will be
discoverable in the text of the [statute], its legislative
history, or an ‘inherent conflict’ between arbitration
and the [statute’s] underlying purposes.” Ibid. (quoting
McMahon, 482 U.S. at 227). The Court has further
explained that “the burden” rests with the party resisting enforcement of the arbitration agreement “to show
that Congress intended” that result. Ibid. In each of
those cases, after examining relevant text, history, and
purpose, the Court concluded that Congress did not
speak with the necessary specificity. See, e.g., Green
Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 89-92

 17
(2000) (Truth in Lending Act); Gilmer, 500 U.S. at 2633 (Age Discrimination in Employment Act of 1967);
Rodriguez de Quijas, 490 U.S. at 479-484 (Securities
Act of 1933); McMahon, 482 U.S. at 227-242 (Securities
Exchange Act of 1934 and Racketeer Influenced and
Corrupt Organizations Act); Mitsubishi Motors, 473 U.S.
at 628-629 (Sherman Act).
CompuCredit Corp. v. Greenwood, 565 U.S. 95 (2012),
is illustrative. There, individuals who had agreed to arbitrate their disputes with a credit-card company filed a
class-action complaint in federal court under the Credit
Repair Organizations Act (CROA), 15 U.S.C. 1679 et seq.
See 565 U.S. at 96. When the defendants moved to compel arbitration under the FAA, the plaintiffs invoked
various CROA provisions that required disclosure of a
consumer’s “right to sue” for statutory violations, id. at
99 (quoting 15 U.S.C. 1679c(a)); imposed liability for violations and “repeated[ly]” used “the terms ‘action,’
‘class action,’ and ‘court,’ ” id. at 100 (quoting 15 U.S.C.
1679g); and declared that “[a]ny waiver by any consumer of * * * any right of the consumer under” CROA
would be “void” and unenforceable, id. at 99 (quoting
15 U.S.C. 1679f(a)).
The Court found those provisions insufficient to demonstrate that Congress intended to preclude enforcement of the plaintiffs’ agreement to arbitrate their statutory claims. The disclosure provision (Section 1679c(a))
created no consumer right other than “the right to receive
the [disclosure] statement” itself. CompuCredit, 565 U.S.
at 99. The liability provision (Section 1679g) was merely
a “guarantee of the legal power to impose liability,” not
a guarantee of access to any particular forum. Id. at 102
(emphasis omitted). And because neither of those provisions entitled a consumer to proceed in court, there

 18
was no “right of the consumer” to which the non-waiver
provision (Section 1679f(a)) might apply. Id. at 101-102
(citation omitted). The Court concluded that CROA was
“silent on whether claims under the Act can proceed in
an arbitral forum,” and it accordingly held that “the FAA
requires the arbitration agreement to be enforced according to its terms.” Id. at 104.
CompuCredit demonstrates the formidable burden a
party bears when seeking to show that “the FAA’s mandate has been ‘overridden by a contrary congressional
command.’ ” 565 U.S. at 98 (quoting McMahon, 482 U.S.
at 226). One feature of CompuCredit and other decisions is especially notable for present purposes: When
examining text and legislative history, the Court has
looked for evidence that Congress intended to address
arbitration agreements in particular. A statute’s general reference to litigation rights, even when combined
with a provision forbidding the waiver of statutory protections, is insufficient to overcome the FAA’s presumption of enforceability. See, e.g., id. at 99-102; Rodriguez
de Quijas, 490 U.S. at 481-482; McMahon, 482 U.S. at
227-228.
2. The NLRA does not contain a specific congressional
command precluding enforcement of plaintiffs’
bilateral arbitration agreements

a. Plaintiffs in these cases have not argued, and neither the Seventh nor the Ninth Circuit suggested, that
the FLSA precludes enforcement of the agreements at
issue here. Although the FLSA authorizes suit “by any
one or more employees for and in behalf of himself or
themselves and other employees similarly situated,”
29 U.S.C. 216(b), that provision is no different from
other “utterly commonplace” provisions that “describe
the details of * * * causes of action, including the relief

 19
available, in the context of a court suit,” CompuCredit,
565 U.S. at 100. “[M]ere formulation of the cause of
action in this standard fashion” is not “sufficient to establish [a] ‘contrary congressional command’ overriding the
FAA.” Id. at 100-101 (quoting McMahon, 482 U.S. at
226); see NLRB v. Alternative Entm’t, Inc., No. 16-1385,
2017 WL 2297620, at *13 (6th Cir. May 26, 2017) (Sutton,
J., concurring in part and dissenting in part) (“Every
circuit to consider the question has concluded that an
employee may waive the right to bring a collective action
under the [FLSA].”).
Plaintiffs’ argument thus depends on the premise
that the NLRA imposes greater restrictions on the arbitrability of FLSA claims than does the FLSA itself.
Nothing in the NLRA’s text supports that proposition.
Unlike many federal statutes, the NLRA does not specifically bar enforcement of agreements to arbitrate
statutory claims or declare such agreements to be unlawful. 2 Plaintiffs therefore rely on general language in

See, e.g., 7 U.S.C. 26(n)(2) (“No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.”); 10 U.S.C. 987(e)(3)
(“It shall be unlawful for any creditor to extend consumer credit to
a covered member or a dependent of such a member with respect to
which * * * the creditor requires the borrower to submit to arbitration.”); 12 U.S.C. 5567(d)(2) (“[N]otwithstanding any other provision of law, no predispute arbitration agreement shall be valid or
enforceable to the extent that it requires arbitration of a dispute
arising under this section.”); 18 U.S.C. 1514A(e)(2) (“No predispute
arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.”);
see also, e.g., 15 U.S.C. 1226(a)(2); 15 U.S.C. 1639c(e)(1); 22 U.S.C.
290k-11(a); 22 U.S.C. 1650a(a). In addition, Congress has delegated
authority to preclude arbitration of certain statutory claims to agencies charged with administering the relevant statutes. See 12 U.S.C.
2

 20
Section 157, which affirms the “Right of employees as
to organization, collective bargaining, etc.,” by providing as follows:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have
the right to refrain from any or all of such activities.
29 U.S.C. 157.
None of the specific rights enumerated in Section
157 involves the conduct of litigation. And even assuming that the residual phrase—“other concerted activities for the purpose of * * * mutual aid or protection”
—encompasses the filing and prosecution of a collective
or class suit asserting employment-related claims, see
pp. 23-24, infra, that language clearly does not focus on
litigation conduct. Any application that Section 157 may
have to employees’ litigation activities is much less direct and specific than the statutory language that was
at issue in cases like CompuCredit, which the Court
found insufficient to override the FAA. It is also much
less direct and specific than the FLSA provision that
authorizes employees to sue “for and in behalf of * * *
themselves and other employees similarly situated.”
29 U.S.C. 216(b). If that language (in the very statute
5518(b) (“The Bureau, by regulation, may prohibit or impose conditions or limitations on the use of an agreement * * * providing for
arbitration of any future dispute between the parties.”); 15 U.S.C.
78o(o) (authorizing the Securities and Exchange Commission to
“prohibit, or impose conditions or limitations on the use of, agreements” to arbitrate disputes “arising under the Federal securities
laws”).

 21
that creates plaintiffs’ cause of action) is insufficient to
bar enforcement of plaintiffs’ agreement to bilateral arbitration of their FLSA claims, it would be anomalous to
conclude that the NLRA’s more general language has
that effect. See Alternative Entm’t, 2017 WL 2297620,
at *16 (Sutton, J., concurring in part and dissenting in
part).
Neither plaintiffs nor the courts of appeals that ruled
in their favor have identified any other context in which
Section 157 could give employees greater rights to pursue class or collective remedies in court than they would
have under the laws that directly address those issues.
An employee who sought certification of a plaintiff class,
for example, could not invoke Section 157 as a basis for
excusing non-compliance with Rule 23’s numerosity and
commonality requirements. See Fed. R. Civ. P. 23(a)(1)
and (2). Rather than expanding the collective-litigation
rights that employees possess, Section 157 at most provides employees additional protection when they exercise the collective-litigation rights that other laws confer. See pp. 23-25, infra. And in determining the scope
of the collective-litigation rights that are otherwise available to plaintiffs in these cases, it is essential to take into
account the FAA as well as the FLSA. Although the
FLSA confers a right to sue, including in a collective
action, plaintiffs waived that right by executing arbitration agreements that were valid under the terms of the
FAA. Because plaintiffs had no right to pursue collective actions under the FLSA and FAA, any collectivelitigation right that Section 157 may confer does not
encompass their suits.
The NLRA further provides that an employer who
“interfere[s] with, restrain[s], or coerce[s] employees in
the exercise of the rights guaranteed in section 157” has

 22
committed “an unfair labor practice.” 29 U.S.C. 158(a)(1).
But that provision simply protects the rights set forth
in Section 157, which do not include any collectivelitigation right beyond those conferred by other provisions of law. An employer would not commit an unfair
labor practice by opposing certification of an employee
class on the ground that Rule 23’s requirements were
not satisfied. By the same token, because Section 157
does not clearly displace the rule announced in the
FAA, under which an employee’s agreement to bilateral
arbitration of workplace disputes is “valid, irrevocable,
and enforceable,” 9 U.S.C. 2, an employer does not
“interfere with, restrain, or coerce employees in the exercise of the[ir] rights” by entering into or enforcing such
an agreement, 29 U.S.C. 158(a)(1). Cf. CompuCredit,
565 U.S. at 101 (“But if a cause-of-action provision mentioning judicial enforcement does not create a right to
initial judicial enforcement, the waiver of initial judicial
enforcement is not the waiver of a ‘right of the consumer,’ § 1679f(a).”).
b. The NLRA’s legislative history does not suggest
that Congress intended to preclude agreements to arbitrate bilaterally. Congress’s primary goal in enacting
the statute was to “promot[e] industrial peace by the
recognition of the rights of employees to organize and
bargain collectively.” S. Rep. No. 573, 74th Cong.,
1st Sess. 1 (1935) (Senate Report). Congress focused
on “collective bargaining” in the traditional sense of the
term—i.e., “the right of employees to bargain collectively through representatives of their own choosing,”
id. at 12—and sought to remove known obstacles such
as so-called “company unions,” anti-union discrimination by employers, and employer interference with union
elections. Id. at 9-14; see H.R. Rep. No. 1147, 74th Cong.,

 23
1st Sess. 8-9 (1935). To the extent arbitration was discussed at all, it was only briefly, in making clear that
Congress had declined to subject labor disputes to “any
form of compulsory arbitration.” Senate Report 2; see
id. at 8 (“The committee does not believe that the Board
should serve as an arbitration agency.”).
c. Because the question is whether the NLRA contains a specific command from Congress precluding bilateral arbitration, the Board cannot supply the requisite
clarity by gap-filling. The specific rights enumerated
in Section 157 involve self-organization, association
with labor unions, and collective bargaining. Plaintiffs’
asserted right is very different from those, both because
it concerns dispute resolution outside the workplace
(whether in litigation or in arbitration) and because,
unlike the enumerated Section 157 rights, it cannot
plausibly be derived from the NLRA alone but depends
on the FLSA’s authorization of collective actions. Those
differences cast doubt on whether the pursuit of an
FLSA collective action is among the “other concerted
activities for * * * mutual aid or protection” to which
Section 157 refers. See Murphy Oil Pet. App. 100a110a (Miscimarra, Member, dissenting in part); id. at
146a-156a (Johnson, Member, dissenting); Alternative
Entm’t, 2017 WL 2297620, at *15-*16 (Sutton, J., concurring in part and dissenting in part).
The Board’s interpretation of ambiguous NLRA language is entitled to judicial deference, however, and its
reading of Section 157’s residual phrase may govern
in contexts where the FAA does not apply. For example, an employer may commit an unfair labor practice
under Section 158 if it discharges an employee for utilizing collective dispute-resolution mechanisms that are
made available by other provisions of law (and that the

 24
employee has not validly agreed to waive). Cf. Eastex,
Inc. v. NLRB, 437 U.S. 556, 565-566 (1978) (“[I]t has
been held [by the Board and lower courts] that the
‘mutual aid or protection’ clause [of Section 157] protects
employees from retaliation by their employers when
they seek to improve working conditions through resort
to administrative and judicial forums.”). 3 Construing
the NLRA to bar such retaliation would not implicate
the FAA, and it would be unlikely to conflict with any
other federal law.
But the Board is not entitled to deference when it
determines how the NLRA should be harmonized with
other federal statutes—here, the FAA. Cf. Hoffman
Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 144 (2002)
(This Court has “never deferred to the Board’s remedial
preferences where such preferences potentially trench
upon federal statutes and policies unrelated to the
Contrary to the Board’s decision in Murphy Oil, see Pet. App.
18a, this statement from Eastex does not indicate that employees
have an unwaivable right to pursue collective or class claims. The
statement relates only to employees’ right to be free from “retaliation,” not their right to proceed collectively in litigation even if the
employees have agreed to bilateral arbitration. The Court in Eastex
expressly reserved “the question of what may constitute ‘concerted’
activities in th[e] context” of litigation, 437 U.S. at 566 n.15, because
the particular activity at issue there was “distribut[ing] a union
newsletter in nonworking areas of [the employer’s] property during
nonworking time urging employees to support the union,” id. at 558.
The Court in Eastex likewise did not address, and these cases do not
present, the question whether an employee is protected from retaliation for invoking collective dispute-resolution mechanisms that he
reasonably, but incorrectly, believes are legally available to him. Cf.
Alternative Entm’t, 2017 WL 2297620, at *16 (Sutton, J., concurring
in part and dissenting in part) (“The employees’ pursuit of collective
procedures may or may not bear fruit, but the pursuit will nonetheless be protected from retaliation.”).
3

 25
NLRA.”). As explained above, the question in these
cases is not whether Section 157 provides additional
protection for employees who invoke collective-action
mechanisms that are available to them under other statutes or procedural rules. At the times they filed suit in
these cases, plaintiffs had no FLSA rights to pursue collective actions because they had waived those rights
through contracts that were “valid, irrevocable, and
enforceable” under the terms of the FAA. 9 U.S.C. 2.
The question in these cases is whether Section 157’s
residual language supersedes that FAA directive and
thereby gives plaintiffs greater rights to pursue collective litigation than they could assert under the FLSA
itself. The Board’s determination that the NLRA trumps
the FAA in that manner is not entitled to judicial deference.
B. Enforcing The Parties’ Arbitration Agreements In These
Cases, In Accordance With The FAA, Would Not Deprive
Plaintiffs Of Any Substantive Right Conferred By
Another Federal Statute

In holding that pre-dispute agreements to arbitrate
federal statutory claims are enforceable, this Court has
explained that, “[b]y agreeing to arbitrate a statutory
claim, a party does not forgo the substantive rights
afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.”
Mitsubishi Motors, 473 U.S. at 628. The Court has contrasted that type of enforceable contract term with a
hypothetical “provision in an arbitration agreement forbidding the assertion of certain statutory rights.” Italian
Colors, 133 S. Ct. at 2310. In holding that the NLRA
bars enforcement of the arbitration agreements at issue
here, the Seventh and Ninth Circuits viewed those
agreements as restricting “substantive” rather than

 26
“procedural” rights. See Epic Pet. App. 17a; E&Y Pet.
App. 14a. That analysis is misconceived.
1. Enforcement of the arbitration agreements at issue
here would not deprive plaintiffs of any substantive
right under the FLSA. Most obviously, the agreements
do not purport to authorize the defendant-employers to
engage in conduct inconsistent with the FLSA’s wageand-hour provisions. See 29 U.S.C. 206 (minimum
wages); 29 U.S.C. 207 (maximum hours). Nor do the
agreements prevent any employee who has suffered a
statutory violation from obtaining (through arbitration)
the full measure of relief that a court could award.
The Court’s decisions also make clear that, for purposes of determining the enforceability of the arbitration agreements at issue here, the right to pursue a collective action under 29 U.S.C. 216(b) is a procedural
rather than a substantive FLSA right. A “class-action
waiver merely limits arbitration to the two contracting
parties. It no more eliminates those parties’ right to
pursue their statutory remedy than did federal law
before its adoption of the class action for legal relief in
1938.” Italian Colors, 133 S. Ct. at 2311. An agreement
not to proceed collectively also does not undermine substantive FLSA rights, because collective dispute resolution “leaves the parties’ legal rights and duties intact
and the rules of decision unchanged.” Shady Grove
Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S.
393, 408 (2010) (opinion of Scalia, J.).
2. Enforcement of the parties’ arbitration agreements likewise would not deprive plaintiffs of any substantive right under the NLRA. To be sure, the rights
enumerated in Section 157—i.e., the rights “to selforganization, to form, join, or assist labor organizations,
[and] to bargain collectively through representatives of

 27
their own choosing”—are core substantive rights conferred by the NLRA itself. Plaintiffs in these cases do
not contend, however, and the courts below did not suggest, that the arbitration agreements at issue here
impair plaintiffs’ ability to self-organize, to form or associate with labor organizations, or to engage in collective
bargaining.
Section 157’s residual phrase confers on employees
additional rights “to engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection.” 29 U.S.C. 157. Although that
residual language could be read to encompass only substantive workplace-related rights closely akin to selforganization or collective bargaining, the Board has
construed it more broadly to cover litigation conduct.
Assuming that is a permissible interpretation, it does
not follow that the right to prosecute a collective action
is a substantive NLRA right, simply because the enumerated rights are substantive in nature. Rather, if the
Board’s reading is permissible, it is because the
residual phrase can reasonably be construed to cover
procedural matters as well as substantive ones. There
is no evident reason to treat the right to pursue collective FLSA litigation as “procedural” under the FLSA
and yet “substantive” under the NLRA.
3. In reaching the contrary conclusion, the Board
incorrectly relied on National Licorice Co. v. NLRB,
309 U.S. 350 (1940), and J.I. Case Co. v. NLRB, 321 U.S.
332 (1944). See Murphy Oil Pet. App. 33a, 44a-45a, 67a.
In National Licorice, an employer whose employees
had recently taken action in favor of a union responded
by requiring all employees to sign contracts “relinquish[ing] the right to strike, [and] the right to demand
a closed shop or signed agreement with any union.”

 28
309 U.S. at 355. This Court concluded that the contracts
“by their terms * * * imposed illegal restraints upon
the employees’ rights to organize and bargain collectively guaranteed by” the NLRA. Id. at 360.
In J.I. Case, after an employee union was certified,
the employer refused to bargain with the union, relying
on individual contracts it had signed with its employees.
321 U.S. at 333-334. The Court held that the “[i]ndividual
contracts * * * may not be availed of to defeat or delay
the procedures prescribed by the National Labor Relations Act looking to collective bargaining, nor to exclude
the contracting employee from a duly ascertained bargaining unit; nor may they be used to forestall bargaining or to limit or condition the terms of the collective
agreement.” Id. at 337. The Court accordingly ordered
the employer to stop using the individual contracts as a
ground for declining to bargain collectively. Id. at 340342.
National Licorice and J.I. Case did not establish any
general rule that “employers may not condition employment on the waiver of employees’ right to take collective
action by seeking class certification or the equivalent.”
Murphy Oil Pet. App. 33a. Rather, both decisions were
highly dependent on a key factual feature that is absent
here. The agreements at issue in those cases “were the
means adopted to eliminate the Union as the collective
bargaining agency of [the] employees.” National Licorice, 309 U.S. at 360 (internal quotation marks omitted);
see J.I. Case, 321 U.S. at 337 (The employer “used [the
agreements] to forestall bargaining or to limit or condition the terms of the collective agreement.”); see also
Murphy Oil Pet. App. 175a-178a (Johnson, Member,
dissenting).

 29
To be sure, the Court in National Licorice did say
that “[t]he effect of [the anti-union] clause [in the
employer-created contracts] was to discourage, if not
forbid, any presentation of the discharged employee’s
grievances to appellant through a labor organization or
his chosen representatives, or in any way except personally.” 309 U.S. at 360. But as the sentence preceding
that one makes clear, the Court’s concern was that such
an agreement would “forestall[ ] collective bargaining
with respect to discharged employees.” Ibid. The present cases do not implicate that concern. And the Court
in National Licorice and J.I. Case did not confront a
situation where another federal statute (like the FAA in
the present cases) specifically condoned the employers’
conduct.
C. The FAA’s Saving Clause Provides No Sound Basis
For Declining To Enforce The Parties’ Arbitration
Agreements

The Seventh and Ninth Circuits relied in part on the
FAA’s saving clause, 9 U.S.C. 2, which provides that
written arbitration agreements are valid and enforceable “save upon such grounds as exist at law or in equity
for the revocation of any contract.” Those courts viewed
“illegality” as one of the generally applicable grounds
for contract revocation referenced in the saving clause.
Epic Pet. App. 15a; E&Y Pet. App. 14a. They construed
the NLRA to “prohibit employers from making agreements with individual employees barring access to class
or collective remedies,” Epic Pet. App. 7a; see E&Y Pet.
App. 9a-11a, and concluded that such agreements are
“illegal, and meet[ ] the criteria of the FAA’s saving
clause for nonenforcement.” Epic Pet. App. 15a; see
E&Y Pet. App. 14a, 16a-18a; see also Murphy Oil Pet.
App. 44a. That analysis is incorrect.

 30
1. The congressional policy judgment that the FAA
reflects is not simply a preference for an arbitral rather
than judicial forum. The FAA mandates enforcement of
a “written provision in * * * a contract * * * to settle
by arbitration a controversy thereafter arising out of
such contract.” 9 U.S.C. 2. In addition to memorializing
the parties’ agreement to arbitrate, the “written provision” that the FAA declares to be enforceable can and
typically does describe the procedures by which the
arbitration will be conducted. Indeed, a principal virtue
of contracted-for arbitration is that it allows contracting
parties to choose procedures tailored to their own circumstances. See, e.g., AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344-345 (2011).
The FAA thus reflects Congress’s belief in “the consensual nature of private dispute resolution,” including
the freedom of contracting parties “to structure their
arbitration agreements as they see fit.” Stolt-Nielsen,
559 U.S. at 683 (citation omitted). That freedom encompasses the right to “agree on rules under which any
arbitration will proceed,” including a right of contracting parties to “specify with whom they choose to arbitrate their disputes.” Ibid.; see Italian Colors, 133 S. Ct.
at 2309. Forcing parties to arbitrate collectively or on
a classwide basis, when they have not “agreed to do so,”
is just as inconsistent with the FAA as requiring them
to litigate when they have agreed to arbitrate. StoltNielsen, 559 U.S. at 684; cf. Litton Fin. Printing Div.
v. NLRB, 501 U.S. 190, 200-201 (1991) (noting “the
strong statutory principle, found in both the language
of the NLRA and its drafting history, of consensual
rather than compulsory arbitration”).
2. The saving clause permits courts to “invalidate an
arbitration agreement based on ‘generally applicable

 31
contract defenses’ like fraud or unconscionability, but
not on legal rules that ‘apply only to arbitration or that
derive their meaning from the fact that an agreement to
arbitrate is at issue.’ ” Kindred Nursing Ctrs. Ltd. P’ship
v. Clark, No. 16-32 (May 15, 2017), slip op. 4 (quoting
Concepcion, 563 U.S. at 339). The types of generally
applicable rules of contract enforceability that the saving
clause covers are at least predominantly, if not exclusively, the province of state law. 4 This Court has never
applied the saving clause to a case in which another federal statute was alleged to render the parties’ arbitration
agreement unenforceable.
To be sure, the saving clause is not explicitly limited to
state-law grounds for contract revocation, and in theory
it would cover a (hypothetical) federal law that barred
enforcement of contracts on a generally applicable
ground like fraud. But the Seventh and Ninth Circuits’
interpretation of the NLRA is not that type of arbitrationneutral rule. Those courts viewed their rule as being
State-law defenses were thus at issue in every case in which this
Court has applied the saving clause—or, more commonly, declined
to do so because the defense was found to discriminate against arbitration. See, e.g., Kindred Nursing Ctrs., slip op. 4-7 (invalidating
defense under Kentucky law that discriminated against arbitration);
Preston v. Ferrer, 552 U.S. 346, 354-356 (2008) (California law); Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 688 (1996) (Montana
law); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 269, 281282 (1995) (Alabama law); Southland Corp. v. Keating, 465 U.S. 1,
10, 16 & n.11 (1984) (California law). And in considering and rejecting various claims that other federal statutes precluded enforcement of arbitration agreements, the Court has never treated the
FAA’s saving clause as relevant to its inquiry. See, e.g., CompuCredit, 565 U.S. at 99-104; Randolph, 531 U.S. at 89-92; Gilmer,
500 U.S. at 26-33; Rodriguez de Quijas, 490 U.S. at 479-484;
McMahon, 482 U.S. at 227-242; Mitsubishi Motors, 473 U.S. at 628629; see also pp. 16-17, supra.
4

 32
arbitration-neutral because it focuses on the agreements’ requirement of bilateral arbitration, rather than
on the obligation to arbitrate as such. The Ninth Circuit
stated that “[i]t would equally violate the NLRA for
[an employer] to require its employees to sign a contract requiring the resolution of all work-related disputes in court and in ‘separate proceedings.’ ” E&Y Pet.
App. 13a. The Seventh Circuit likewise described the
purported flaw in the challenged agreement as its
requirement of bilateral dispute-resolution procedures:
“If Epic’s provision had permitted collective arbitration, it would not have run afoul of Section [157].” Epic
Pet. App. 17a.
This Court’s decisions make clear, however, that the
FAA’s saving clause does not encompass every rule of
contract enforceability that is capable of application to
contracts other than arbitration agreements. See, e.g.,
Kindred Nursing Ctrs., slip op. 5-6; Concepcion, 563 U.S.
at 341-342. The Court in Concepcion applied that principle in the specific context of a state-law rule against
enforcement of class-action waivers contained in certain
consumer contracts. See 563 U.S. at 340 (describing relevant state-law rule). The Court described the ways in
which use of class procedures can be expected to subvert the advantages that ordinarily attend arbitration.
See id. at 348-351. The Court explained that the FAA’s
saving clause should not be construed “to preserve
state-law rules that stand as an obstacle to the accomplishment of the FAA’s objectives” because “the act
cannot be held to destroy itself.” Id. at 343 (citations
omitted). It concluded that the FAA preempted the
state-law rule barring enforcement of class-action waivers because “[r]equiring the availability of classwide
arbitration interferes with fundamental attributes of

 33
arbitration and thus creates a scheme inconsistent with
the FAA.” Id. at 344.
Principles of conflict preemption do not directly govern the interpretive question that is currently before
the Court, which involves the proper harmonization of
two federal statutes. But Concepcion underscores that
the rule adopted by the Seventh and Ninth Circuits substantially disserves the FAA’s purposes, even though
that rule would not preclude enforcement of all agreements to arbitrate employee claims, and even though
it would also preclude enforcement of hypothetical
employee-employer contracts that mandated individual
suits in court. As the dissenting judge in Ernst & Young
explained, the rule those circuits found to be implicit in
the NLRA “would disproportionately and negatively
impact arbitration agreements by requiring procedures
that ‘interfere with fundamental attributes of arbitration.’ ” E&Y Pet. App. 40a (Ikuta, J., dissenting) (brackets omitted) (quoting Concepcion, 563 U.S. at 344). Just
as the saving clause was held not to encompass the
state-law rule at issue in Concepcion, it does not encompass the analogous federal-law rule that the Seventh
and Ninth Circuits derived from the NLRA. See ibid.
Congress remains free to adopt such a rule, of course,
but it must clearly and specifically express its intent to
override the FAA’s general federal policy—which Congress did not do in the NLRA.

 34
CONCLUSION

The judgments of the courts of appeals in Nos.
16-285 and 16-300 should be reversed, and the judgment
of the court of appeals in No. 16-307 should be affirmed.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
MALCOLM L. STEWART
Deputy Solicitor General
ALLON KEDEM
Assistant to the Solicitor
General

JUNE 2017

 APPENDIX

1.

9 U.S.C. 2 provides:

Validity, irrevocability, and enforcement of agreements
to arbitrate

A written provision in any maritime transaction or a
contract evidencing a transaction involving commerce
to settle by arbitration a controversy thereafter arising
out of such contract or transaction, or the refusal to
perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing
controversy arising out of such a contract, transaction,
or refusal, shall be valid, irrevocable, and enforceable,
save upon such grounds as exist at law or in equity for
the revocation of any contract.

2.

29 U.S.C. 157 provides:

Right of employees as to organization, collective
bargaining, etc.

Employees shall have the right to self-organization,
to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from
any or all of such activities except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in section 158(a)(3) of this
title.

(1a)

 2a
3.

29 U.S.C. 158 provides:

Unfair labor practices
(a)

Unfair labor practices by employer

It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
(2) to dominate or interfere with the formation
or administration of any labor organization or contribute financial or other support to it: Provided,
That subject to rules and regulations made and published by the Board pursuant to section 156 of this
title, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;
(3) by discrimination in regard to hire or tenure
of employment or any term or condition of employment to encourage or discourage membership in any
labor organization: Provided, That nothing in this
subchapter, or in any other statute of the United
States, shall preclude an employer from making an
agreement with a labor organization (not established, maintained, or assisted by any action defined
in this subsection as an unfair labor practice) to
require as a condition of employment membership
therein on or after the thirtieth day following the
beginning of such employment or the effective date
of such agreement, whichever is the later, (i) if such
labor organization is the representative of the employees as provided in section 159(a) of this title, in the
appropriate collective-bargaining unit covered by such
agreement when made, and (ii) unless following an

 3a
election held as provided in section 159(e) of this title
within one year preceding the effective date of such
agreement, the Board shall have certified that at
least a majority of the employees eligible to vote in
such election have voted to rescind the authority of
such labor organization to make such an agreement:
Provided further, That no employer shall justify any
discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable
grounds for believing that such membership was not
available to the employee on the same terms and
conditions generally applicable to other members, or
(B) if he has reasonable grounds for believing that
membership was denied or terminated for reasons
other than the failure of the employee to tender
the periodic dues and the initiation fees uniformly
required as a condition of acquiring or retaining
membership;
(4) to discharge or otherwise discriminate against
an employee because he has filed charges or given
testimony under this subchapter;
(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.
(b)

Unfair labor practices by labor organization

It shall be an unfair labor practice for a labor organization or its agents—
(1) to restrain or coerce (A) employees in the
exercise of the rights guaranteed in section 157 of
this title: Provided, That this paragraph shall not
impair the right of a labor organization to prescribe
its own rules with respect to the acquisition or reten-

 4a
tion of membership therein; or (B) an employer in
the selection of his representatives for the purposes
of collective bargaining or the adjustment of grievances;
(2) to cause or attempt to cause an employer to
discriminate against an employee in violation of subsection (a)(3) or to discriminate against an employee
with respect to whom membership in such organization has been denied or terminated on some ground
other than his failure to tender the periodic dues and
the initiation fees uniformly required as a condition
of acquiring or retaining membership;
(3) to refuse to bargain collectively with an
employer, provided it is the representative of his
employees subject to the provisions of section 159(a)
of this title;
(4)(i) to engage in, or to induce or encourage any
individual employed by any person engaged in commerce or in an industry affecting commerce to engage
in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting
commerce, where in either case an object thereof
is—
(A) forcing or requiring any employer or
self-employed person to join any labor or employer
organization or to enter into any agreement which
is prohibited by subsection (e) of this section;

 5a
(B) forcing or requiring any person to cease
using, selling, handling, transporting, or otherwise
dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain
with a labor organization as the representative of
his employees unless such labor organization has
been certified as the representative of such employees under the provisions of section 159 of this title:
Provided, That nothing contained in this clause
(B) shall be construed to make unlawful, where
not otherwise unlawful, any primary strike or
primary picketing;
(C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if
another labor organization has been certified as
the representative of such employees under the
provisions of section 159 of this title;
(D) forcing or requiring any employer to assign
particular work to employees in a particular labor
organization or in a particular trade, craft, or class
rather than to employees in another labor organization or in another trade, craft, or class, unless
such employer is failing to conform to an order or
certification of the Board determining the bargaining representative for employees performing
such work:
Provided, That nothing contained in this subsection
shall be construed to make unlawful a refusal by any
person to enter upon the premises of any employer
(other than his own employer), if the employees of

 6a
such employer are engaged in a strike ratified or
approved by a representative of such employees
whom such employer is required to recognize under
this subchapter: Provided further, That for the purposes of this paragraph (4) only, nothing contained in
such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and
members of a labor organization, that a product or
products are produced by an employer with whom
the labor organization has a primary dispute and are
distributed by another employer, as long as such
publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to
refuse to pick up, deliver, or transport any goods, or
not to perform any services, at the establishment of
the employer engaged in such distribution;
(5) to require of employees covered by an agreement authorized under subsection (a)(3) of this section
the payment, as a condition precedent to becoming a
member of such organization, of a fee in an amount
which the Board finds excessive or discriminatory
under all the circumstances. In making such a finding, the Board shall consider, among other relevant
factors, the practices and customs of labor organizations in the particular industry, and the wages currently paid to the employees affected;
(6) to cause or attempt to cause an employer to
pay or deliver or agree to pay or deliver any money
or other thing of value, in the nature of an exaction,
for services which are not performed or not to be
performed; and

 7a
(7) to picket or cause to be picketed, or threaten
to picket or cause to be picketed, any employer
where an object thereof is forcing or requiring an
employer to recognize or bargain with a labor organization as the representative of his employees, or
forcing or requiring the employees of an employer to
accept or select such labor organization as their collective bargaining representative, unless such labor
organization is currently certified as the representative of such employees:
(A) where the employer has lawfully recognized in accordance with this subchapter any other
labor organization and a question concerning representation may not appropriately be raised under
section 159(c) of this title,
(B) where within the preceding twelve months
a valid election under section 159(c) of this title
has been conducted, or
(C) where such picketing has been conducted
without a petition under section 159(c) of this title
being filed within a reasonable period of time not
to exceed thirty days from the commencement of
such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 159(c)(1) of
this title or the absence of a showing of a substantial interest on the part of the labor organization,
direct an election in such unit as the Board finds
to be appropriate and shall certify the results
thereof: Provided further, That nothing in this
subparagraph (C) shall be construed to prohibit
any picketing or other publicity for the purpose of
truthfully advising the public (including consum-

 8a
ers) that an employer does not employ members
of, or have a contract with, a labor organization,
unless an effect of such picketing is to induce any
individual employed by any other person in the
course of his employment, not to pick up, deliver
or transport any goods or not to perform any services.
Nothing in this paragraph (7) shall be construed
to permit any act which would otherwise be an unfair
labor practice under this subsection.
(c)

Expression of views without threat of reprisal or
force or promise of benefit

The expressing of any views, argument, or opinion, or
the dissemination thereof, whether in written, printed,
graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains
no threat of reprisal or force or promise of benefit.
(d)

Obligation to bargain collectively

For the purposes of this section, to bargain collectively is the performance of the mutual obligation of
the employer and the representative of the employees
to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and
conditions of employment, or the negotiation of an
agreement, or any question arising thereunder, and the
execution of a written contract incorporating any
agreement reached if requested by either party, but
such obligation does not compel either party to agree to
a proposal or require the making of a concession:
Provided, That where there is in effect a collectivebargaining contract covering employees in an industry

 9a
affecting commerce, the duty to bargain collectively
shall also mean that no party to such contract shall
terminate or modify such contract, unless the party
desiring such termination or modification—
(1) serves a written notice upon the other party
to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed
to make such termination or modification;
(2) offers to meet and confer with the other party
for the purpose of negotiating a new contract or a
contract containing the proposed modifications;
(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of
the existence of a dispute, and simultaneously
therewith notifies any State or Territorial agency
established to mediate and conciliate disputes within
the State or Territory where the dispute occurred,
provided no agreement has been reached by that
time; and
(4) continues in full force and effect, without
resorting to strike or lock-out, all the terms and
conditions of the existing contract for a period of
sixty days after such notice is given or until the expiration date of such contract, whichever occurs later:
The duties imposed upon employers, employees, and
labor organizations by paragraphs (2) to (4) of this subsection shall become inapplicable upon an intervening
certification of the Board, under which the labor organization or individual, which is a party to the contract,
has been superseded as or ceased to be the representa-

 10a
tive of the employees subject to the provisions of section 159(a) of this title, and the duties so imposed shall
not be construed as requiring either party to discuss or
agree to any modification of the terms and conditions
contained in a contract for a fixed period, if such modification is to become effective before such terms and
conditions can be reopened under the provisions of the
contract. Any employee who engages in a strike within
any notice period specified in this subsection, or who
engages in any strike within the appropriate period
specified in subsection (g) of this section, shall lose his
status as an employee of the employer engaged in the
particular labor dispute, for the purposes of sections
158, 159, and 160 of this title, but such loss of status for
such employee shall terminate if and when he is
reemployed by such employer. Whenever the collective bargaining involves employees of a health care
institution, the provisions of this subsection shall be
modified as follows:
(A) The notice of paragraph (1) of this subsection
shall be ninety days; the notice of paragraph (3) of
this subsection shall be sixty days; and the contract
period of paragraph (4) of this subsection shall be
ninety days.
(B) Where the bargaining is for an initial agreement following certification or recognition, at least
thirty days' notice of the existence of a dispute shall
be given by the labor organization to the agencies
set forth in paragraph (3) of this subsection.
(C) After notice is given to the Federal Mediation and Conciliation Service under either clause (A)
or (B) of this sentence, the Service shall promptly
communicate with the parties and use its best efforts,

 11a
by mediation and conciliation, to bring them to
agreement. The parties shall participate fully and
promptly in such meetings as may be undertaken by
the Service for the purpose of aiding in a settlement
of the dispute.
(e)

Enforceability of contract or agreement to boycott
any other employer; exception

It shall be an unfair labor practice for any labor
organization and any employer to enter into any contract or agreement, express or implied, whereby such
employer ceases or refrains or agrees to cease or refrain
from handling, using, selling, transporting or otherwise
dealing in any of the products of any other employer, or
to cease doing business with any other person, and any
contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such
extent unenforcible 1 and void: Provided, That nothing in this subsection shall apply to an agreement
between a labor organization and an employer in the
construction industry relating to the contracting or
subcontracting of work to be done at the site of the
construction, alteration, painting, or repair of a building, structure, or other work: Provided further, That
for the purposes of this subsection and subsection
(b)(4)(B) of this section the terms “any employer”, “any
person engaged in commerce or an industry affecting
commerce”, and “any person” when used in relation to
the terms “any other producer, processor, or manufacturer”, “any other employer”, or “any other person”
shall not include persons in the relation of a jobber,
manufacturer, contractor, or subcontractor working on
1

So in original.

Probably should be “unenforceable”.

 12a
the goods or premises of the jobber or manufacturer or
performing parts of an integrated process of production in the apparel and clothing industry: Provided
further, That nothing in this subchapter shall prohibit
the enforcement of any agreement which is within the
foregoing exception.
(f )

Agreement covering employees in the building and
construction industry

It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer
engaged primarily in the building and construction
industry to make an agreement covering employees
engaged (or who, upon their employment, will be
engaged) in the building and construction industry with
a labor organization of which building and construction
employees are members (not established, maintained,
or assisted by any action defined in subsection (a) of
this section as an unfair labor practice) because (1) the
majority status of such labor organization has not been
established under the provisions of section 159 of this
title prior to the making of such agreement, or (2) such
agreement requires as a condition of employment,
membership in such labor organization after the seventh day following the beginning of such employment
or the effective date of the agreement, whichever is
later, or (3) such agreement requires the employer to
notify such labor organization of opportunities for
employment with such employer, or gives such labor
organization an opportunity to refer qualified applicants for such employment, or (4) such agreement
specifies minimum training or experience qualifications
for employment or provides for priority in opportunities for employment based upon length of service with

 13a
such employer, in the industry or in the particular
geographical area: Provided, That nothing in this
subsection shall set aside the final proviso to subsection
(a)(3): Provided further, That any agreement which
would be invalid, but for clause (1) of this subsection,
shall not be a bar to a petition filed pursuant to section
159(c) or 159(e) of this title.
(g)

Notification of intention to strike or picket at any
health care institution

A labor organization before engaging in any strike,
picketing, or other concerted refusal to work at any
health care institution shall, not less than ten days
prior to such action, notify the institution in writing
and the Federal Mediation and Conciliation Service of
that intention, except that in the case of bargaining for
an initial agreement following certification or recognition the notice required by this subsection shall not be
given until the expiration of the period specified in
clause (B) of the last sentence of subsection (d) of this
section. The notice shall state the date and time that
such action will commence. The notice, once given, may
be extended by the written agreement of both parties.