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
(I) 

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. 
(III) 

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
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

 
(1) 

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
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, 360-

362 (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 

 

1 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.
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 26-

33 (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 

 

2 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. 
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 

 

3 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.”).
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 340-

342.

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 

 

4 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, 281-

282 (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 628-

629; see also pp. 16-17, supra. 
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
(1a)

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. 
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 unenforcible1 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.