we'll hear argument first this term in case sixteen two eighty five epic systems corporation versus lewis and a consolidated cases mr clement mr chief justice and may it please the court respondents claim arbitration agreements providing for individual arbitration that would otherwise be enforceable under the f a a are nonetheless invalid by operation of a nother federal statute this court's cases provide a well trod path for resolving such claims because of the clarity with which the f a a speaks to enforcing arbitration agreements as written the f a a will only yield in the face of a contrary congressional command and the tie goes to arbitration protected by section seven at most gets them to the threshold of the courthouse but section seven is directed to the workplace not the court house and what it protects is their right in the workplace to decide they want to initiate is not the issue here as i understand these employees say we don't object to arbitration but we do object to is the one on one the employee against the employer and the driving force of the n r a was the recognition that he was in an imbalance that it was no true liberty of contract so that's why they said in  harare conservative activity is to be protected against employee employer interference that's right justice ginsburg but it's collective action by the employees in the workplace and then once they get to their forum be it the wasn't directed there if it doesn't say that i mean in fact we said the opposite in easter we said employees seeking to improve working conditions through resort to administrative and traditional forms essentially the legislatures and the court houses and the agencies is covered by the mutual aid or protection clause so you know in the stacks we came up against this question said it was very clear that the mutual aid or protection cla swept further than the workplace itself as long as the ultimate goals were workplace related whether you took those goals to the in the you know in activity in the workplace or in the agencies or in the courts it didn't matter at all it was all covered by section seven that's right justice kagan but the could the key words there are resort to there's no right in section seven or anywhere else in the n r a to proceed as a class once you get there  which could be just two people joining a case in judicial as well as arbitration for regardless i'm worried about what you're saying is overturning labor law the goes back to for f d r at least the entire heart of the new deal what we have here is a statute two of them nor a slick war and yet the end hilary which for years have been interpreted the way justice kagan said they say that they protect the joint joining together those are the words joining together the words or interpretation of you could have two workers to seek to improve working conditions through resort to administrative and the statute protects the worker when two workers join together to go into a judicial or administrative forum for the purpose of improving working conditions and the employers here all said we will employ you only if you promise not to do that ok that's the argument against you i want to be sure that i didn't see it you know concepcion i read it too we all have but i haven't seen a way that you can in fact win the case which you certainly want to do without undermining and changing radically what has gone back to the new deal that is the interpretation of norris laguardia and the n l r k so i will stop i would like to listen and i want to hear what your answer to that is so the short answer justice prior to that i'd like to try to get out a longer answer but the short answer is that for seventy seven years the board did not find anything incompatible about section seven and bilateral arbitration agreements and that includes in two thousand and ten when the n l r b general coun looked at this precise issue now the longer answer is from the very beginning the most that has been protected is the resort to the forum and then when you get there you're subject to the rules of the form so for example if an atypical worker decides that he wants to bring a class action on behalf of a handful of fellow employees they the he has the right to resort to the courts but when he gets there if he's confronted by an employer this is wait a second you don't satisfy  numerosity you don't satisfy typicality then the employer doesn't commit an unfair labor practice by raising that argument of course not but are you now conceding that in these contracts in front of us that they do not for bid two workers or three or four from going together approaching a judicial forum asking the judge to hear their case or an arbitration forum and of course if it violates some rule of civil procedure other than that it will be thrown out are you conceding that board doesn't even take it that far they agree that arbitration agreements as long as what's at issue is an individual claim are perfectly fine and perfectly valid so this isn't a principle that says that the employees position is so weak they can't agree to arbitrate at all the second part of that is i suppose that's one way of asking the question in this case is a bilateral arbitration agreement something that has been protected by the f a a since one nine hundred twenty five is that really because all it  meant to deal with bargains between merchants bargain between american to say the arbitration form is much less expensive so we want to go there rather than the court but it was commercial else was up in front of this court saying oh by the way you're sort of wasting your time here because the n r a instruction seven is going to strictly prohibit the ability to enter bilateral but our signature issue mr clemente your your adversaries are taking the position logically so that if a union wants to ensure arbitration we've already heard the court speak on this issue the union can substitute arbitration for judicial for  because then the collective body of workers has acted together and come contracted to gether on an equal footing with the employer for that term now the problem that i have with this bilateral issue is you seem to be thinking that somehow the n l r b can't invalidate a contractual term just as state will concepts like floor fraud duress the normal contract terms that invalidate contracts section seven and such an eight of the n l r b basically declare a contract a contract illegal if it does a certain thing and that is if it stops an individual from concerted activities so what that starts with is this contracts no longer valid there's nothing to take to the court house so if what it is  stopping you from taking activity that you're legal that entitle to take so a couple of things just to sort of me or first of all i'd have to double check but i'm pretty sure the employer in circuit city was not a union employee and in all events i think that the point is that circuit boy would that have been a useful thing to tell the court in circuit city but no dog barked at that point in the gilmer case where you were dealing with an employment issue a da and a collective action provision the a f l cio filed its o to raise a different issue that hadn't been briefed the issue the court eventually decided in circuit city but they didn't say oh my goodness what are we doing here section seven of the n r a it's directly on point and that's because the n r a in no other context extends beyond the workplace to dictate the rules of the forum and the best example is the board itself of course section seven protects the rights of employees to file an unfair labor practice before the board and of course they can collaborate with their coworkers to file the unfair labor practice but guess what when they get before the board the board doesn't have class action procedures now that doesn't create some huge problem that just reflects that of course you get to resort to the courts the arbiter forum or the regulatory arbitration makes it a class action there is one case and any easier than the other two we decide both on the same principle i think ultimately decide both on the same principle i think the way to think about that though is that section seven requires two things at risk wires concerted activity for mutual aid and protection now if you have two individuals that are trying to collaborate that's concerted activity and then they have it has to be for mutual activity so if a couple workers are talking off the shop and are helping one guy get additional alimony i mean that's not for mutual aid and protection it might be concerted activity but it's not the latter that poses for their wages if it's for their wages i think if you have a couple of folks that are doing it in the workplace that's concerted activity they get to the forum and they get whatever rights to proceed concertedly that are available in the form if it's a class action it's arguably harder because you can file a class action and not collaborate with anybody and just you know essentially seek to represent a will i mean mr green it's harder for the employer to prevail over for the employee i'm sorry it's harder for the employee to prove that it's concerted activity but i don't think there's any but your case is really my first case is that this is not really a class suit with this or a wrong or or my wrong or there's murphy it was well yeah there's three cases here and i think that you know two of them might be more like the class action case and one might be like the concerted activity case i'm obviously representing all three of the employers but that's not why i'm telling you that you don't have to make a distinction between the two it's really because i think the way to think about the section seven right is it gets you to the courthouse it gets you to the board it gets you to the arbitrator  about section one hundred two and one of three the norris laguardia act let's take justice kennedy's example you have three guys in they all join claims so we don't have the question about a class action and whether that's concerned and this is clearly concerned and they're seeking higher wages so it's clearly for their mutual aid and protection so they're covered under section seven and then section one zero two of the  basically just repeat section seven and then section one of three says and i'm quoting now any undertaking or problem yes in conflict with essentially the language in section seven shall not be enforceable in any court so what about that any undertaken or promise in conflict with section seven rights in other words any waiver of section seven rights shall not be enforceable in any court well that  conclusion with all respect justice kagan which is do you only thing that assumed was that this was covered under section seven but and used you yourself said this is concerted and it's for mutually in protection and once that's true this language of norris laguardia comes in and says forget about a waiver because an undertaking in conflict with section seven shall not be enforceable i don't think that that's the way to read the statute and i think the reason is that this isn't i don't think the way to see a traditional bilateral arbitration agreement is as a waiver of a section seven right or an end all ga right it is just an effort by the employer and the employee to agree to set the rules for the form of arbitration when you get there and there's nothing sinister about leaving it to bilateral arbitral it's an agreement but it's an agreement to leave a section seven right i mean that's what it is it's a used to have this right for concerted at tiffany and now i don't with all due respect i think that assumes the conclusion you didn't have a freestanding right to proceed with class arbitration in an arbitrary forum you had a right to go to whatever forum and abide by those rules and one of the rules in the clement mr chief justice and me please the court i just like to highlight one point in what mr clement said no one questions that the f l s say permits the employees here to forgo collective actions an arbitrator of the law say claims in giving employees the right to is eighteen hundred dollars to proceed alone in the arbitrary forum will cost much more then any potential recovery from one that's why this is  situation where there is strength in numbers and that was the core idea of the n r a there is strength in numbers we have to protect the individual worker from being in a situation practical you unable to vindicate their claims those are exactly the kind of arguments this court rejected in italian colors rejected in concepcion and said bilateral arbitration agreements or enforceable under the plain terms of section two of the c f r we didn't have i don't know how you do that when at least one of these agreements if not all three have confidentiality agreements that prohibit the employers from talking to other employers from combining with other  law defense a common state law defense like fraud address except it's federal law here say you can't do this just sort of why with all respect this court's always said look is there a clear congressional command in the other statute the f a a is clear that these agreements ought to be enforced you know laurie isn't always clear in saying that conservative activity cannot be interfered with that's right but for the first seventy seven years here's what everyone including the board understood that to mean you can be protected from dismissal of retaliation when you seek class treatment up to the courthouse doors of the doors of the orbital forum but once you're inside you don't have an entitlement to proceed as a class notwithstanding the f a a all or rule twenty three or other federal rules do your horton was the first to make that move and that's a pretty radical move to say for the first time that the you know lawyer overrides other statutes and the reason you can't get there is that section seven doesn't say anything about arbitration or class or collective treatment and unlike other statutes congress didn't delegate to the board the ability to decide which pretty dispute arbitration we have to go into all this class action business i mean it seems to me that in each of these agreements the worker is forced to agree that i will not proceed concertedly that means jointly just one other person joining my action with this and going into arbitration and saying to both together and maybe there is some rule that forbids people from doing that in arbitration or the aaa or something i've never seen it and it also says you can't do the same thing in court you have to go to arbitration and then the two of you can't get together so simplifying it to its extreme case like that why can't we just say that's clearly against what labor law since the nine hundred thirty years has said was an unfair labor practice the employee cannot the employer cannot impose such an agreement that would be simple clear it would void our class action not would i don't want to characterize it as a nightmare but there is a problem there ok what's wrong with that just as pride with all respect to historical premises just wrong when you go back to nine hundred thirty five and you come all the way through the cases they summarize them as joint legal action or concerted legal activity but that's only true if what you mean is the right to  have to be clear whatever the rules are they apply and the only rule that wouldn't apply would be a rule that would say we're automatically going to enforce the agreement not to come here you couldn't do that when that would be a kind of trick with just a part but that aside from that everything else would apply but that's not going to get them where they want to go take murphy or maybe it won't that's too bad but i mean doesn't that resolve this case i think we're on the same page take murphy oil resolve the case well not the employees attempted to file a class action murphy all didn't retaliate against the murphy all just came and moved to compel individual arbitration pointed the finger gets decisions when what is stopping the concerted activity is not that which form they choose whether it's quarter arbitration where you're stopping the concerted activity is in the very act of saying this can only be an individual arbitration and individual court action what your adversaries have stipulated to in resolving this question is if they can have collective activity in arbitration according to their argument it's harder for them to win but this particular provision is illegal because it is removing collective that's right where a contract has been invalidated by statute so second even if you try to go to the savings clause which is court is never done in a case like this why would he even need to go there well just read the n l r b because the n l r b on its face doesn't say anything about this you've let's just to quickly finish the answer i think again the questions assumes the conclusion which is it assumes that when the board five years ago took the concerted activities clause and stretched it for the first time to cover your ability to go pursue the rights granted collective procedures granted to you by some other statute it assumes that those procedures that it picked up which in every other context like under the f l a say are procedural it's somehow converted to be substantive and non w that's the move the board can't make because it can't interpret the ambiguity that way in the face of the f a a and federal rules like rule twenty three so that's the move that was off the table and if you understand section seven to protect you from retaliation when decided to do you have an opportunity to brief it what's your position on this i think i think both of those justice alito i think it's not before the court but frankly i don't think it matters because i don't think it adds anything the text is is essentially identical and both statutes for basically three quarters of a century were understood to co exist comfortably with the f a a and it's really only do your horton that put them in tension by reading both section seven and the equivalent sections of the norris the gory act to grant the employee something that those statutes had never been thought to grant them and it's resolving that ambiguity in the face of the f a a that i think is a problem as we have maybe justice kagan could perceive i think that both you and mr clement agree that if you had a discriminatory arbitration agreement that say an arbitration agreement that said that the employer will pay the arbitration clause that's of men but not women that that would not be enforceable why not so i think a couple of reasons justice  the first is i think every if that case came to the court i think we'd have no trouble concluding that the a da in title seven in civil rights laws apply equally or congressional command ok so if that's the case and you're saying there can be a conflict between statutes in the title seven would supply a clear congressional command even though title seven says absolutely nothing about arbitration well again i don't think it's a magic words test and i will agree with petitioners on that you can have a clear congressional command absent that you don't have it in section seven you have an agency attempting to supply it and the other thing i'd say is it's not a fundamental attribute of here's one understanding may i continue sure is one understanding of title seven says to the employer you shall not to discriminate and  and in section seven says to the employer you shall not interfere with concerted activities such as three guys joining together to bring a suit if they until it just it is not a fundamental attribute of arbitration to discriminate on the chief justice and made clear to the court the board's rule here is correct for three reasons first it relies on longstanding precedent barring enforcement of contracts that interfere with the right of employees to act together concertedly to improve their lot as employees second finding individual arbitration agreements unforeseeable under the federal arbitration sac savings clause because they are legal under the national labor relations act gives full effect to both statutes and third the employer's position would require this court for the first time to enforce an arbitration agreement that violates an express prohibition in another federal statute mr griffin if i'm not sure i fully understand your position it individual or individuals can agree to arbitrate disputes so long as they allow that as long as the agreement allows collective arbitration is a correct nor your honor it's a slight variation on that the board's position is individuals can agree to arbitrate individually so long as there are is a collector a forum in which  arbiter of form but that's all right now though it's just they have to arbitrate whether they do it individually or collectively you cannot restrict that the board's position is that as this court has said on multiple occasions that the arbiter of form is the equivalent of the judicial form for of affectively vindicating statutory rights so here as has been mentioned there for people who are seeking to get paid in the murphy case for work that they did if if the form is available to them to proceed jointly right and the employer agrees to have it done in arbitration that's fine from the board standpoint case so the point is they they can in their arbitration agreement waive the right to proceed collectively in court so long as they have the right to do it in arbitration because this court has said on multiple occasions that those two forms are functionally equivalent for purposes board takes into account this court's views with respect to the ability to effectively vindicate these rights in an arbiter for we have said that with respect to individual arbitration have we said that with respect to class arbitration well your honor we're talking about a rule here that doesn't just stop the class or stop it stops any kind of joint activity it stops two people proceeding together it stops collective we have three individual arbitration but you represent all three of us they can do that they could do that your honor but it does show that's collective action but it's not it's not the collective action that's protected here the act protects the employee's rights to proceed concertedly you know they're proceeding then thirdly they have a single attorney there presenting their case it's going to be decided maybe in three different hearings but it doesn't allow the employer to choose which type of activities the employees can engage and what are you you said the justice kennedy i didn't think i might have missed this smith jones and brown are three employees each believes that he has not enough over time or something like that and he goes to the same attorney all three and it wasn't exactly the same time it wasn't exact there are differences so what they want to do is file a joint they want to say our employer violated the dod because they did not pay us anough ok they're not identical but they're very similar now can they go together to the arbitrator under this agreement no no ok so the answer to justice kennedy was they can not go to the lawyer and have this brought in one action unless can be attained by going to the same attorney sure the cases are considered individually but you see if if you provide it well it seems to me quite rational for many employers say forget it we don't want arbitration at all i don't think you've done employees much of an advantage you would have a judicial forum if the employer doesn't want outracing in fact i fully understand that but the point is you're saying that the employers are now constrained in the kind of arbitration agreements they  are constrained with respect to limiting employees ability to act concertedly in the same way that from the beginning of the national labor relations act individual agreements could not be used to the board with not taking the position that it is now taking it was not objecting to by lateral one on morning obligation well with due respect to my colleague stance an inaccurate summary of the board's preston your honor  the board's president has always said that individual agreements that require employees to individually waive their right to proceed collectively are violations of the national labor relations act that's what this court up with all due respect to the general counsel at the time that memorandum was never adopted by the board as the law of the board and in fact was explicitly rejected in the horten decision and subsequently in morph i'm curious about the the point that's been made that the board doesn't allow class proceedings there must be a reason and you must have some explanation for how that can be reconciled with your your position but i'd like to know what it is well if it's a misnomer to say that the board doesn't allow close proceedings your honor the way a proceeding under the national labor relations act worked is the board doesn't have any independent investigatory florida or ability to initiate suits on its own what happens is charges are filed those charges are filed by employers employees and they could be filed by a group of as many used employees as you want the general counsel of the board acting through the regents decides whether or not to pursue the complaint and then the general counsel proceeds in the public interest to litigate the case administrative leave so it's not the type of proceeding that that lends itself to the concept of cl actions but it doesn't stop as many employees as want to and in fact frequently the union will be found a charge that's a representative charge in very much the same way that a class representative would be pursuing a class action in court question i have is how do you draw a distinction between a an agreement wait precluding class arbitration and all of the other rules of civil procedure that limit the ability of employees to engage in collective living geisha well here is where your honor we we actually have agreement with with the other side the the board's rule does not require any modification to the class procedures in court what the board's rule says is you can't preclude people from proceeding jointly by virtue of an unlawful agreement imposed upon them by their employer when what you say that that what is the scope of the of the right to engage in concerted activity while if that's the case why would it not abrogate any limitation in new rules of procedure that predated the enactment of that well that the board's position your honor i want to always have to take these these provisions as they find them so i'll give you an example in your in this court's decision in washington aluminum there were a group of employees who were faced with a frigid workplace in response to those conditions they walked out that was in  if they were faced with unsafe conditions or they could jointly file a petition or a claim or complaint with osha that was a subsequently enacted provision that allowed employees to choose a different path to address their workplace terms and conditions of employment the same is true with the subsequently enacted rules whether it's through sixteen b of the fair labor standards act whether it's rule twenty three of the federal rules of civil procedure these are all means of mechanisms that were dotted subsequently that employees can choose to use if they're available are so the argument is that that restrictions and rule twenty three abrogate rules section seven because they were enacted later that started it all your honor and then i don't understand the answer is people who have section seven rights are just like any other plaintiff and the requirements of rule twenty three with respect to numerosity are typically mr griffin is this one way to think about the question of of course section seven doesn't extend to the ends of the earth if there are three m please who go out jointly rioting in the streets they run up against anti riot laws and they go to jail just like everybody else what section seven does and what section eight does is to establish a set of rules that deal with how employers can deal with employees and one of the things that section seven and section eight say in concert if you will is that employers can't demand as conditions of employment the waivers of concerted rights and that's all you're saying here that that's entirely correct your honor and so and specific prohibits interference with the employee's exercise of the right you think all the rules apply the rules of the forums apply absolutely and yang both sides are in agreement on that but yes it is whether you can resort to can they stop you from resorting to administrative and judicial forums that's correct and in grievance arbitration by the way how i just wonder because it's very common are there instances where they'll probably be a worker representative going to the employer that are there instances where the grievance is a grievance that is shared by people but not perfectly shared so jones smith and brown will go to the representative and say representative please let's go before the arbitrator and you represent all three certainly your honor there are many instances where the union will take a grievance with respect to overtime that's not paid to multiple people on the same shift  this court's decisions with respect to the steelworkers trilogy all involve arbitration situations that involve multiple parties representative let's say the arbitrary form says the rules of the arbitral form says you you can proceed individually it could you can prove and you can proceed collectively but only if the class represents more than fifty people is that all right under your theory that's a rule of the arbiter of form and the employee takes the rules of the forum as they find so you have a right to act collectively one only if there are fifty one or more of you what no your honor what you have an opportunity to do is to try and utilize the rules that are available in the forum out the employer intervening through a vial a prohibition that's violent and also about the hypothetical of the chief can protect is a part of the hypothetical is the contract you have to have fifty oh i understood i'm sorry i misunderstand another question but i misunderstood the question i thought we were talking about the arbuckle form itself has rules as opposed to the arbitration agreement between all the arbitron forum has rules just like the federal rules of civil procedure and what you're saying is well once you get into federal court of course you've got to follow the rules of the form and we have arbitrary forms as well and i think those rules are equivalent to you take the employee takes the rules of the form as they find them what is prohibited here under the national labor relations that is an agreement by the employer that's imposed that limits the employee's right to take the rules as you know ok so you know hey if you can form said that it's not ok if there's an agreement between the employer and the employee that limits the right to proceed so no so while the employer well and why can the arbitral forum in force the rule that says basically you cannot collectively if it's fewer than fifty people because the prohibition in the national labor relations act section eighty one runs to employer interference restraint or coercion with respect to the rules with respect to exercising rights under section seven it doesn't say any case of the employer has forums involve well but most arbitration agreements tell you what the form is whether it's the aaa or something else so if the employer employee agreement says you shall arbitrate this under this particular arbitration forum and those rules say workers will do collective arbitration but only if you have more than fifty one people because we think it's more efficient to have a smaller number arbitrate individually that would be ok under your position yes you are and what if the rules of your patrol form say no class arbitration you honor it would be it would be just as though in the analogous circumstances congress said there were to be no class actions in court that the employee our position is that the employees right to proceed class arbitration you have an agreement requiring arbitration before the x y z arbitration association which has rules that don't allow class arbitration or the provisions of the national labor relations act wrong to prohibitions against that supporting the the position that the board took in more fuel and it dresses the circumstances under which in both labor arbitration and employment arbitration employees are able to proceed in joint collective have national labor relations act rights who also have a flawless a rights that there can be a waiver of the right to pursue jointly it's if you imagine in mathematical terms there's a set of people who have rights under the fair labor standards act there's a lesser included subset of people who have rights under both a fairly recent under that and the national labor relations act and as to that lesser included sat there's no ability to waive the right in an agreement with an employer to proceed collectively do you have a view mr griffin as to whether bringing a class action is itself a concerted activity by a single named  had that lies essentially unchallenged here and the board's law is that if an individual takes action to initiate to induce or to prepare for group action that that is concerted activity is understood under section seven and and the board specifically held in murphy oil and we've reached this in our brief that that a class action fits within the notion of initiating inducing preparing for in fact the lewis case involved an individual who filed the class action and then was joined immediately by a number of other players and each of these cases involves concerted activity there isn't a question of concert here because there were four people involved in filing the murphy oil action there were two were involved in in morris and as i said lewis was joined by others in their counsel or do you have any idea in our in union collective bargaining agreement and so is this the unusual case we're the union hasn't negotiated that kind of contract well this is this involves individual employees there's no union present in these cases your contracts that are covered by mandatory arbitration agreements and that covers about sixty million people twenty three percent of those employees have non individual which are non joint non sure if i may respond to a few points of mr walls there seems to be a belief on the employer's side that allowing employees to waive section twenty rule twenty three rule twenty eight and section sixteen be rights under the fair labor standards right fair labor standards act except when the section seven of the n r a is in the picture somehow creates an anomaly that's not the case your honour's all these other rule twenty twenty three in section sixteen create radio mechanisms but they'd create no substantive rights rule section seven the n r a and section two of the north warty act on the other hand create substantive rights but they create no procedural mechanisms there's not conception for example can concern state law discourse followed preemption analysis and was very concerned in particular about the application of the state law in that case it was california it's unconscionable the doctrine and this court found that it was applied in a discriminatory manner which tended to target arbitration that was the problem with that also you honor although this court found that affecting an essential arb attribute of arbitration was important in that case that is very different here as well collective arbitration is much more traditional in the labor employment context than it is in the consumer cont is there anything wrong from your point of view which taking this case in a very unsatisfactorily way to everybody except perhaps simple as just simply read the words what the employer cannot is joint effort like making a joint claim nothing to do with class actions thus making a joint claim resorting to administrative and judicial forums for the purpose of making that joint claim now the contracts seem to be an employer effort to stop an employee from doing that because they don't allow him to do that either  judicial for i suppose and of opinion ok now from your point of view does that solve the case or does it just create a lot of problems is it totally out to lunch or what no your honor we think that would absolutely solve the case well but of course there's another statute that has either equally or plainer language which says that arbitration agreements will be enforced according to their terms does it complicate the case to add that into it it complicates it one step what the f a a gives the f a a also takes away your honor that same provision of the f a a section two actually reserves creates an exception for state for contracts that for contractual provisions that are illegal and this court has also said that there are two other doctrines that are kind of begs the question we're trying to figure out if this is illegal you can assume that that type of arbitration agreement is illegal and therefore it's covered by a clause that prevents enforcement of illegal arbitration agreements sure you can your honor section seven clearly prohibits this kind of behavior and kaiser steel dischord itself said that such contracts are illegal and cannot be enforced by a court they easily fit within the fifty employee hypothetical jew agree with the and now larby that it is all right to have a provision which says there is no class arbitration unless there are more than fifty people involved the disagree with the position of the n l r b because i understood them to say that yes once you're in the forum you have to abide by the rules of the form and one of the rules of the forum that i hypothesized is one that saying you've got to have at least fifty people before you can have a collective action now if it's  arbitration agreement that means you're already out of the courts so the question is is that a valid agreement or not well when you get to the orbiter before you are bound by cause but when an employer tries to coerce by making a condition of continued employment that the poit agreed to a set of arbitrary rules that make collective action impossible and at the same time well might be going to it doesn't make collective action impossible it requires that could be at least fifty one employees before you can have collective action and you know it's a rule like the federal civil procedure which says you cannot have a cult class action whenever you want to but you have to satisfy certain rules like numerosity you about a complicated no no no no but so long as there is an alternative of a elbel where a group of fifty of less than fifty people could pursue without there's no alternative available because you're green to arbitrate your green you go to the for the sake of argument that the employer here has forty nine employees and he gives a contract to the employee that says you have to arbitrate with me in this forum it's an earnest and young that has five thousand employees i don't actually know the number of the first sake of argument five thousand employees what would be wrong by choosing a limits class actions to fifty people the federal rules say that you have to have a class that's big enough in the murasaki to warrant class treatment and  arguably and if there's only twenty or twenty five employees a judge could using it's his or her discretion say no i'm not going to have a class action with twenty five people you know but the difference your honor is that under the federal rules you can still have a joint action with two three four five people up to fifty and as i was assuming the hypothetical from the chief justice under the rules the rules of the orbital form he was putting forward it would be either position of the and i want to be on that thank you and the right to sue if the right to engage in concerted activity includes the right to have to file a class action in federal court how can an agreement provide that a waive that right and require arbitration even if arbitrations even of class arbitration is allowed or can it not do  that your honor under section seven as long as the joint legal action is available in one form that why where do you get that out of the language of the that as justice kennedy said you do have the right to concerted activity in the sense that three or more employees could decide that they want to go to the orbital forum and then they would arbitrate individually but they could have the same lawyer and the like they also have other option is  stop the same lawyer from thinking about the three cases mr intelligent usually usually when you have a right the fact that there is one way to exercise a right left over does not make it ok if we've taken away another twenty five ways of exercising the right you know when we think about the first amendment we don't say we can ban leafleting because you can always write in bed and the same thing applies here the fact that there is something left over colloquy with justice alito that's exactly their position as long as there's an avenue for concerted activity open that's good enough and i did want to mention there is another avenue for concerted activity which is the three employers employees rather can go to the wage and hour division of the labor department and the wage in our division it thinks there is a problem can bring an action that will be subject to the arbitration agreement under this court's decision waffle house mr clement these are related questions which is how does an employee with these confidentiality agreements or even with this agreement in place how are they able to bring a pattern or practice or disparate treatment course of action and explain to me why employers would prefer one hundred different claims let's say in a religious accommodation case where half the arbitrator's say you must honor this those fifty people's religious claims and the other are bridge fifty arbitrator say no you don't have to we're how we are employers and employees helped with such a system and how with these individual arbitration claims that have become more recent in  modern times this is not these bilateral arbitration agreements which have not been the norm they've been the norm in more recent times when the court said that we weren't going to recognize class action in arbitrate that's when employers jump to this but how do you deal with those two policy considerations let me try to deal with them just to sort of my over but let me let me first correct what i think is just a disagreement between the two of us which is i think in this court said as much in italian colors in concep commercial arbitration ok but again this court cross that bridge and circuit city now when you get to you raised a concern about what if you can only bring a pattern in practice case with you know more than one plaintiff well you know the parties really haven't briefs that but that did come up a lot in italian colors because the second circuit had a rule that said that you could only bring a pattern pack practice case pursuant to a class action and try as i might to say that that was a problem with effective indication i only got four votes so the court seemed to say that that wasn't a sufficient problem thank you ron thank you counsel the cases are submitted