honor the issue here is really two issues although sometimes treated by the appellate and by the courts as one that is whether what conduct is illegal under section seven and section eight of the national labor relations act and what are the consequences of that illegality with respect to what conduct is illegal that's been court has said that collective lawsuits are a form of section seven collective action so we don't need we don't need the you know our b to tell us that and i don't think the other side really disputes that if they do i'd like to hear it but i'm concerned about what are we supposed to defer to when murphy oil in your view the n l r b has said something it's certainly not an expert on the intersection of the give someone to give up a right to collective action in a contract that is a condition of employment is a violation of section seven and do we have to do we have to determine in this case whether there's a conflict between the n r a and the f a a well we have to determine if there is such a conflict and i's respectably submit that there is not because of section two of the f a a when we when we look at the issue of illegality under federal law which as from time out of mind been a ground for in law or equity for the revocation of a contract that is surely what congress understood or within the ambit of what congress understood and intended when it passed section two saving clause but there's the n r a is it does it outlaw arbitration clauses no it out was closes that restrict the right of employees to take concerted action in mutual aid or protection which includes acting collectively or in a class in the  start with the n o r a but when i read the supreme court's cases on arbitration they start with the f a a and they say ok here's someone who say because they're wearing a suit under a particular federal act  the there are forgiven the they have a right that does not require them to arbitrate and the supreme court says no we disagree we have to interpret according to its terms unless there is a clear congressional command and when they've found that they haven't found a clear congressional command yet but when they give some examples it's statutes that specifically look at the n r a it doesn't specifically say anything about arbitration agreements it has a concerted action language but like the a t a i collective action so so help me understand how we can find a specific congressional command that would say the arbitration agreement is not enforceable according to its terms well your honor i hope i can help your honor with that question but i think the issue is not in constitutionally cannot be that the supreme court can establish for the legislature certain words that they must order or procedures that they must follow in order to make their congressional intent clear i think that that have having some sort of religious incantation referring to the f a a is not within the power of the court to establish we have we have a contract here yes we did it has many clauses yes it is and the part of it is an agreement to arbitrate all disputes but another part of it is a waiver of right to see collective action if you have the correct let's assume that the waiver right to seek collective action is inconsistent with the n r a and therefore invalid and we have a severability clause in this contract which says pull out the bad stuff go on with the rest of it it was that what does that leave you don't you still have to go to arbitra at that point you may have a way that is this is if you signed a contract with no waiver at all now you file you you you come up and you file this this complaint and they move it to arbitration the arbitrator may well say to you i can't help you with a class action because i don't have that power and the supreme court seems to suggest that arbitrators don't have that power in absent the agreement of the parties but isn't the correct solution of this case to excise the class action waiver provision believe you as if you just signed a contract with an arbitration clause in it send it to the arbitrary and let you argue to the arbitrator what you have in your honor that may be that's a matter of contract interpretation and the way in which the whether the severa i'm interested in what judge you could have said here and i want to i want you to focus on it the supreme court says we're not going to find that that agreements are exempt from the f a a and thus we find some indication in the act and some other federal act rather explicit that we don't want things arbitrated and i think you can see that's not true here because if this were just this is an individual arbitration agreement you weren't seeking question action you would say this goes to arbitration absolutely ok but is nothing in the act inconsistent with the notion of arbitration there is something in the act inconsistent with the notion of class action waiver so and we have an agreement that says we strike that we take it out like why is not the right solution and your honor it may well be and i think i argued that in the supplemental brief in response to the that it's not a binary choice of arbitration or no arbitration the question is whether that clause with that the waiver clause can be enforced there is an issue of a due process issue raised by stalled nielson but i think that issue is resolved if and in accordance with the supreme court rules if the parties consent to a class arbitration there's nothing that prohibits class arbitrations as a matter of federal law or as a matter of arbitration love the part you're saying you have to have a class action you're disfavoring arbitration that's it in a in a nutshell it was so a lot more than that and why would we apply that here that if we interpreted the l r a as a concerted action provision precludes a waiver of class action you're basically just as favoring arbitration and your honor i think the supreme court did not say it quite the way your honor did respectfully i think the supreme court clear anything that shows even says judicial hostility or hostility towards arbitration is isn't forcible because congress has the right to determine i don't want to see you have to interpret concerted action so arbitration you have to have some sort of consent by both sides to agree who would that be a question for in this case i think in the initial instance it would be a question for the district court to interpret the contract between the parties after all the it's a matter of contract that's what this court said so what if you do your first is directed let me take a backwards and what if the district court or the arbitrator said i when i read the contract they haven't consented to class arbitration they've done everything possible to stay away from it even if we knock this clause out of it then oh you know you have to arbitrate your individual claim no then i think we're allowed to proceed so you take the escape hatch in this case you really want us to to really want us to hold that arbitration  think last arbitration that's a that's a pretty convoluted contract and with that's why that's why i said actually i think it's a fairly straightforward contractual interpretation issue respect really but that's why i say it's a matter for the district court to determine the question if consent is a serious question and it may well be that there can be no arbitration because of the interaction of cases like stall and the absence of consent to class arbitration or the fact alternatively interpreted by the n l r b to clare's the contract was in question illegal which contract clause in question the contract was prohibiting collective action or class action not the contract clause about arbitration absolutely so then the question is what's the consequence of that we don't find i mean there are consequences under the n l r a but you also find consequences under common law and under the f a a itself and under common law and under the f a a not under the n contracts which are a legal under one federal statute may not be enforced by a federal court so that is to get back to judge could is comment that is where the issue of the supremacy cla federal lax becomes different and under connecticut national bank for such germane in the supreme court under negs versus united states postal service in this court if there is such a conflict between the f a a and the the court may not refuse to enforce the n l r b which is exactly what the yellowing court did exactly what the d r horton fifth circuit court did it maine must enforce must enforce the statutes passed by congress and the statute the congressional intent as expressed in the statute the congressional attend is to render that clause the bar and concerted action illegal which means as a consequence under federal common law that it cannot be enforced now if we go beyond that and we say well let's look at the policies of the two statutes we cannot do respect lee this court cannot do that then fact leaves this court with the opportunity respect fully to get it right thank you counsel thank you and if i could have a little bit of time in rebuttal of you two knots and just people as a time want to put something on the clock good morning your honor is my name is rex heikki and along with my colleague gregg we are here on behalf of the appellant's ernst and young i want to turn first to the question of the collective right because i think it's being somewhat mis understood what is the nature of the collective right that exists here we submit that the nature of that right is defined in this instance by rule twenty three and the provision in the fair labor standards act about collective action but let me ask you this let's assume you had this contract with mr mars and already anyway and the contract r b in the supreme court's interpretation of section seven i don't think so because the right to have under the national labor relations act to a concerted action doesn't create a right to a class action  to to move for a class certification why is that not collective action you can do that but what you can do is defined by the procedural right you have in court there is a but we all agree there's a procedure right you might not get a class action you're asking we're asking a different question i think beginning can you require can you require employers a condition of employment to say i won't even seek a class action ever and i think you can because rule twenty three allows people to opt out in effect to waive that right so there's no reason they couldn't agree in a contract to waive that right it isn't you can waive lots of rights fifty and all or i mean you could i suppose you could waive the right to protest your boss who's decisions to get injured but the difference here is that congress has defined what the right to a class action is and its definition of that right is a wave a ball right the same thing is true for a collective action under the fair labor standards act so congress has defined what the scope of that right is the national labor relations act doesn't create any right to pursue a class action it doesn't create any right to pursue a collective action those are rights that congress conferred said oh ok you can pursue a class action but it's a way of a bill and so is in the right under than sorry fair labor standards act so let me get let me rephrase your argument see if i understand it your argument is that what they gave up here was merely a procedural right it wasn't right protected by the n r a to pursue collective not quite how i would phrase it well but that's how i phrased it why am i wrong well what i would say is that they cave up what congress confer which was a right under rule twenty three but it's a right under twenty three the collective right or so i should say the right to a concerted action under the nation a labor relations act is no broader than what rule twenty three provides that's all that half it's rule twenty three didn't exist they'd have no right to a class action it doesn't create an independent right to a class act which they do have a right to pursue collect you agree they have a right to pursue collective relief they do but what is what is that ok finally by rule twenty one really get you off of this argument for a second because let's assume they have a right that they couldn't wave to pursue a class action that would violate section seven what's the consequence of that here well then i think what what has to be done is the court has to weigh that against the federal arbitration x policy well put it it's a separate issue isn't it the federal law but they signed a contract with two different provisions it one was a one was a class action waiver if you will collective action w another one was an arbitration clause and so would we find the class action waiver part of the contract illegal well if congress had passed in the national labor relations act or anywhere else for that matter had said employees can waive their right to a class action then they'd have an argument but the concerted action for example you're still on the i'm asking you to assume for a second that that's what section seven says section seven says you can't ask them in a contract to waive their right to a class action given that assumption what do we then do with this case well then i think it's what you're talking about with opposing counsel so if we then have a contract or maybe with an arbitration cause they want to pursue class arbitration you think they can't because of concepcion in other cases who decides that i think the court the district court yes i think that's a decision for the court for the arbitra past there is no there is no federal are there up till then there's no federal arbitration and and then we get the n f l are being passed and it when it's passed it's passed against the background of the of the court's holding that employee employer contracts are not subject to arbitration yes under the original f a a and then it's not on one nine hundred fifty one the court says oh that only applies to transportation workers the other ones are subject to arbitration it's not till two thousand and something the supreme court says and obama the way when you read arbitration you have agreed you haven't agreed to due to a class arbitration if we're looking to see what the framers of the n r a intended isn't it true that they just didn't think about these issues at all because none of them were real issues at the time i think they think about arbitration because it didn't apply to employees they don't think about class actions because they hadn't been invented yet think about waivers because concepcion has had to come down to how do we how do we find anything in the statutes that deals with the with the with the other statute well i i think i agree with you if what you mean by that is that congress when it passed the national labor  laguardia act never thought that it was doing anything to ban waivers of class actions because they didn't exist congress couldn't have been sitting there when it passed those last thinking to itself oh by the way this is our clear command that there's no right i think the last act of congress did seem at least in my view and i don't just do you disagree with to give a clear command as to the right to pursue collective action and if it did and we later find out the collective action is inconsistent with arbitration how do we deal with that well i guess i my problem is i don't agree with the premise of concepcion apply yes is the question opposing counsel says it doesn't apply a rule that makes arbitration slow inefficient and so on in less congress says that expressly or less the parties agree to it but surely the parties can agree to class arbitra agreed to them that's what that's what's told me all sums all about the supreme court's decision there so without an express agreement to a class action you cannot have clear i want to try maybe rephrase it the supreme court says we won't read into the word arbitration alone an agreement to a class action you need you need to have something more than show some consent i don't know whether it has to be express or implied i'm not sure the court necessarily said that but he did say that agreement arbitration alone doesn't carry with it  collective rights violates section seven if what you're saying is congress that the national labor relations act contains in it a clear command that you can't have class you can't have waivers of  rule that's going to affect arbitration this way right when i do hear and i think what that gets back to is what is the test that the supreme court's applied when it's says class action waivers are invalid and what it is said is if you want to trump the f the federal arbitration now you need to do something clear the house to be a clear committee and it can't be something vegan or nebulous it needs to be something that's express let me suspend the historical sequence for a second and ask you to assume that we had the federal arbitration act we had all the intervening supreme court decisions about the act and  other things and today congress passed the n r a and the n r a had a provision in it which clearly said you can't give up collective rights what would you position and we loose because it would be a clear that it would protect the right to bring up mass action against to pursue one would you lose well i'm having trouble with you say that i think that what you said your hypothetical is assume the in l r a says what it says today but fail to make that meet the test that there be a clear coming out of it trumps the f a a right it's got to be more than that because look at all the cases the supreme court has said this federal statute that federal statute do not create a right to a class action the anti trust laws the americans with disabilities act in gilmer the statute there which was modeled on the nation on the fair labor standards  created in express right to have a collective that to have a collective action and the supreme court said even with that express right it can be way and you can have a waiver of class arbitration no problem and and there's several cases like that where the supreme court has said the same thing that there's no problem in waiving these kinds of rights i don't dispute congress could say it can't be wave oval but it hasn't it needs to do something much clearer than adopt the national labor relations act which says you have a right to a concerted action at a time where neither the fair labor standards act created any collective action and rule twenty three didn't even exist i think it's almost impossible to set a date that congress is intent when it passed the national labor relations act was to outlaw the waiver of class actions and if that was not congress and sent him if that's not shown then there is no clear command from congress that trumps what is said in the federal arbitration or what if congress used language not know not knowing of the future existence of its actions but used language which today the n l r b interprets as as from providing that employers can't require people to waive their right to pursue ques actions but i think that's exactly what the n l r b is saying i know that's what's so i'm trying to figure out what we do the n l r b says this is what the statute means well but it's what it's what it's always meant we're just doesn't that why doesn't that mean that the statute does do precisely what your opponents say it does well i think even the n l r b in their brief concedes in their footnote three they say section seven protects employee rights to act in concert to pursue joint class or collective claims if and as available that is those rights are whatever is defined has been defined so what they have the right to do is pursue twenty three and it's rule twenty three didn't exist they'd have no right to seek a class action they have a right under the fair labor standards act to pursue a collective collective action as defined there but if congress eliminated either of those they wouldn't have them and so when congress adopted each of those it defined just how far the concerted action right when and how did it define both of those as a way of a ball right it can't be that congress was thinking that we're creating some kind of non wave o'boyle right here when each of those is expressly wave a pull that just can't be a clear congressional command to trump the federal arbitration and i think we've seen that the right to concerted action only to those types of actions that are not wave a ball is that what you're saying no no it only goes well it only goes to those actions as defined by congress so yes employers have a right to concerted action and yes it applies to class actions but it doesn't create anything beyond what the class action rules what concerted what concerted activities can employees not wave in their in a why think they can waive the right to strike for example because congress has said you have a right to strike so you can which is to ask somebody to give them class action right now or to waive that you'd have to ask for it you can waive that rogers gave them the right to waive or is there is there a waiver simply because you don't pursue it now congress gave them the right to waive it because you can opt out that is a right to weigh in under the fair labor standards act you waive by not opting in you have to opt in to what's called a collective action there otherwise you're not a member of it if you don't opt in you're not a member but we're talking here about the lead plaintiff because that would lead plaintiff doesn't opt in to lead plaintiffs brings the case and other people opt in or out sure but my point you may be able enforce that waiver against them but how do you enforce the waiver against him for not bringing it right not a non waive all right so there's no prohibition on this point to or any member of the purported class waiving that right congress hasn't decreed that they can't waive it and  beast position comes down to they say this is a substantive right and it cannot be way that's why they say the agreement is not enforceable here but congress hasn't said that it is the opposite of that if congress went to say it you have a non waive a bill right to a class action more power to congress but it hasn't done that but it doesn't i mean isn't the argument asking for the waiver is interfering with the right to concerted action substantive right that cannot be way you can't wait and therefore it trumps the federal arbitration act because it's a clear command that you can't waive that and what i'm saying is it's nothing of the sort it's just the opposite of that congress has said that you can't waive rule twenty three congress has said that you can waive the fair labor standards act so there cannot be any conclusion here that congress was issuing a clear command that the right to a collective action under the fair labor standards act or the right to rule twenty three class actions is non wave a ball and that's the we began our discussion this morning with talking about what the court is required to defer to with respect to the n l r b orton and murphy oil and i think that the last exchange with  my friend mr hunky sort of illustrates the problem with the position of the appellee s and the eighth circuit and fifth circuit position because congress has said has said that you may not waive your right to pursue collective or class actions under rule twenty three or otherwise in a contract as a condition of employment and why do we know the congress says that because the n b which has the power to administer the n l r a has expressly so held and it's the same as if congress wrote those words in the statute so what must this court to further to this court must defer to that conclusion there is no question as to what i think question is consistent with supreme court decisions to which you talk of litigation is a form of collective action you know it's consistent with these texts which one could argue think that the supreme court statements in east texas which could be characterized as dicta but clearly made it clear that concerted legal action through a legal forum or otherwise would be covered by concerted action and i think that's the express holding of brady and the express holding of mojave but leaving that aside for the moment my problem with the other circuits decisions is actions that's been resolved now just as a matter of history it's not exactly correct that unified procedures weren't permitted they were permitted under equity rule forty eight and before that under equity rule thirty eight and there were possible ways of joining actions together which may or may not apply to this particular case and in the world twenty three although adopted in the present form in one thousand nine hundred sixty six there were lots of legal collective actions and under the actually actions arbitrations with the union concerning rights of employees our collective actions through a representative so that that is not exception i  to point out that it is highly significant that you will not may not respectfully disregard the commands of the n l r a as to illegality unless you find that there is a positive be to determine that the one of the statutes has been repealed and that positive repugnance must be clear and manifest you can look at the f a a at the words of the statute you cannot look at the legislative history and find a clear and manifest positive repugnance to the ability of congress to narrow the f a a which we submit is exactly what they did when they declared certain kinds of contract