IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60860

CONVERGYS CORPORATION, 

 Petitioner Cross-Respondent, 

v. 

NATIONAL LABOR RELATIONS BOARD, 

 Respondent Cross-Petitioner. 

On Petition for Review and Cross-Application 

for Enforcement of an Order of the 

National Labor Relations Board 

Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges. 

JENNIFER WALKER ELROD, Circuit Judge:

The National Labor Relations Board determined that Convergys violated 

the National Labor Relations Act both by requiring job applicants to sign a 

class and collective action waiver and by subsequently seeking to enforce the 

waiver. Convergys seeks review of the Board’s determination, arguing that it

conflicts with our binding case law. We GRANT Convergys’s petition for 

review and DENY the Board’s cross-application for enforcement. 

I.

Convergys requires job applicants to sign an agreement that includes the 

following waiver: 

United States Court of Appeals

Fifth Circuit

FILED

August 7, 2017

Lyle W. Cayce

Clerk

 Case: 15-60860 Document: 00514106079 Page: 1 Date Filed: 08/08/2017
No. 15-60860

2 

I further agree that I will pursue any claim or lawsuit relating to 

my employment with Convergys (or any of its subsidiaries or 

related entities) as an individual, and will not lead, join, or serve 

as a member of a class or group of persons bringing such a claim 

or lawsuit. 

Despite having signed this agreement, a Convergys employee brought class 

and collective Fair Labor Standards Act (FLSA) claims against the company in 

the District Court for the Eastern District of Mississippi. Convergys sought to 

enforce the waiver agreement by filing a motion to strike these claims. The 

employee filed charges with the National Labor Relations Board, asserting 

that the company interfered with the exercise of employee rights by 

maintaining and by enforcing the waiver agreement. The district court denied 

the company’s motion to strike, Convergys settled the FLSA lawsuit, and the 

employee requested to withdraw the charges she filed with the Board. 

However, the Board’s General Counsel issued a complaint alleging that 

Convergys had violated Section 8(a)(1) of the National Labor Relations Act 

(NLRA) both by requiring job applicants to sign the waiver and by seeking to 

enforce the waiver in the employee’s lawsuit. 

An Administrative Law Judge (ALJ) recommended a finding that 

Convergys had violated Section 8(a)(1) of the NLRA, relying on the Board’s 

prior decision in D. R. Horton, Inc., 357 NLRB 2277, No. 184 (2012). The ALJ’s 

reliance on this decision was subsequently undermined by our denial of 

enforcement in D. R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013)

(Horton). Nevertheless, the Board adopted the ALJ’s opinion, as modified, in 

a two-to-one decision.1 The Board majority sought to distinguish Horton and 

to rely instead on other Board decisions recognizing a broad “right of employees 

 

1 The Board did not determine whether the waiver is overbroad or whether it could 

reasonably be understood by an employee to prohibit the exercise of rights that it did not 

actually waive, and the issue is not before us on appeal. 

 Case: 15-60860 Document: 00514106079 Page: 2 Date Filed: 08/08/2017
No. 15-60860

3 

to join together to improve their terms and conditions of employment through 

litigation.” Notwithstanding these Board decisions, the Board dissent would 

have relied on “the multitude of court decisions that have enforced class 

waivers,” including the Fifth Circuit’s Horton decision. The Board ordered 

Convergys to cease and desist from requiring applicants to sign a waiver, to 

cease and desist from enforcing the waiver, and to take steps to ensure all 

applicants and current and former employees knew the waiver was no longer 

in force. Convergys petitioned for review of the Board’s decision, and the Board 

submitted a cross-application for enforcement of its order. 

II.

Section 7 of the NLRA provides: 

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. 

29 U.S.C. § 157. The threshold question in this case is whether Section 7’s 

guarantee of the right “to engage in other concerted activities for the purpose 

of . . . other mutual aid or protection” contemplates a right to participate in 

class and collective actions.

This court has already rejected the Board’s position that Section 7 

guarantees a right to participate in class or collective actions, holding that the 

use of a class or collective action is a procedure rather than a substantive 

 Case: 15-60860 Document: 00514106079 Page: 3 Date Filed: 08/08/2017
No. 15-60860

4 

right.2 Horton, 737 F.3d at 357;3 id. at 361; see also id. at 362 (noting that, 

under the Board’s interpretation, “the NLRA would have to be protecting a 

right of access to a procedure that did not exist when the NLRA was 

(re)enacted”). Despite our decision in Horton and similar rulings by a majority 

of circuits that have considered the issue,4 the Board has persistently clung to 

its view that Section 7 guarantees a substantive right to participate in class 

and collective actions, and we have persistently declined to enforce Board 

orders based on this disregard of our law.5 We recognize that the Supreme 

Court’s decision in NLRB v. Murphy Oil USA, Inc., cert. granted, 137 S. Ct. 809 

(2017), may resolve the issue shortly. In the meantime, however, we must 

 

2 Because we are bound to follow our precedent, we cannot apply Chevron deference 

and, likewise, we do not reach how we would interpret Section 7 apart from our binding 

precedent.

3 Citing Reed v. Fla. Metro. Univ., Inc., 681 F.3d 630, 643 (5th Cir. 2012), abrogated 

on other grounds by Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064 (2013) (“[W]e have 

characterized a class action as a procedural device.”); Carter v. Countrywide Credit Indus., 

Inc., 362 F.3d 294, 298 (5th Cir. 2004) (class action procedures not a substantive right under 

FLSA); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612–13 (1997) (rule providing for class 

actions could not be interpreted to “abridge, enlarge or modify any substantive right”); Gilmer 

v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 32 (1991) (class action procedures not a 

substantive right under ADEA); Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 332 (1980) 

(“[T]he right of a litigant to employ Rule 23 is a procedural right only, ancillary to the 

litigation of substantive claims.”). 4 See, e.g., Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326 (11th Cir. 2014); 

Sutherland v. Ernst & Young, LLP, 726 F.3d 290 (2d Cir. 2013); Owen v. Bristol Care, Inc., 

702 F.3d 1050 (8th Cir. 2013). But see Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 

2016), cert. granted, 137 S. Ct. 809 (2017); Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 

2016), cert. granted, 137 S. Ct. 809 (2017). 5 See, e.g., Jack in the Box, Inc. v. NLRB, No. 16-60386, 2016 WL 7235648 (5th Cir. 

Dec. 13, 2016); Citigroup Tech., Inc. v. NLRB, No. 15-60856, 2016 WL 7174107 (5th Cir. Dec. 

8, 2016); Emp’rs Res. V. NLRB, No. 16-60024, 2016 WL 6471215 (5th Cir. Nov. 1, 2016); Citi 

Trends, Inc. v. NLRB, No. 15-60913, 2016 WL 4245458 (5th Cir. Aug. 10, 2016); 24 Hour 

Fitness v. NLRB, No. 16-60005, 2016 WL 3668038 (5th Cir. June 27, 2016); On Assignment 

Staffing Services, Inc. v. NLRB, No. 15-60642, 2016 WL 3685206 (5th Cir. June 6, 2016); 

Chesapeake Energy Corp. v. NLRB, No. 15-60326, 2016 WL 573705 (5th Cir. Feb. 12, 2016); 

Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), cert. granted, 137 S. Ct. 809 

(2017). 

 Case: 15-60860 Document: 00514106079 Page: 4 Date Filed: 08/08/2017
No. 15-60860

5 

apply our circuit’s binding precedent. See, e.g., Horton, 737 F.3d at 344; 

Murphy Oil, 808 F.3d at 1013. 

In Horton, we considered the Board’s position that a class and collective 

action waiver violated the NLRA and determined that the waiver “must be 

enforced according to its terms.” Horton, 737 F.3d at 362. Because the waiver 

at issue appeared in an arbitration agreement, we inquired whether 

enforcement of the agreement under the Federal Arbitration Act (FAA) was 

“precluded by another statute’s contrary congressional command.” Id. at 358. 

We recognized that a contrary congressional command could have been implicit 

in a “conflict between the FAA and the NLRA’s purpose,” but explained that 

“we do not find such a conflict.” Id. at 361. The reason that the FAA and the 

NLRA did not conflict was that Section 7 could not be interpreted to create a 

substantive right to participate in class and collective actions—as we 

explained, “a substantive right to proceed collectively has been foreclosed by 

prior decisions.” Id. Thus, our determination in Horton that a class and 

collective action waiver is enforceable was based on the fact that “[t]he use of 

class action procedures . . . is not a substantive right.” Id. at 357.

Because our decision in Horton was based on our interpretation of 

Section 7 and our reasoning was not limited to interpretation and application 

of the FAA, the Board’s argument that Horton is limited to the arbitration 

context is unpersuasive.6 Horton’s interpretation of Section 7 is binding on 

this panel. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th 

 

6 In support of this position, the Board cites Killion v. KeHE Distrib., LLC, 761 F.3d 

574 (6th Cir. 2014). Killion is not a persuasive basis for distinguishing our prior decisions as 

it is an out-of-circuit decision that interprets the FLSA rather than the NLRA, holds contrary 

to Fifth Circuit precedent that the FLSA’s provision for class actions conveys a right that 

cannot be waived, declines to decide whether a different rule should apply in the context of 

arbitration agreements, and relies on a framework for evaluating waivers that is not 

supported by the reasoning of Horton and its progeny. See id. at 590–92.

 Case: 15-60860 Document: 00514106079 Page: 5 Date Filed: 08/08/2017
No. 15-60860

6 

Cir. 2008) (“[O]ne panel of our court may not overturn another panel’s decision, 

absent an intervening change in the law, such as by a statutory amendment, 

or the Supreme Court, or our en banc court.”); see also Gochicoa v. Johnson, 

238 F.3d 278, 286 n.11 (5th Cir. 2000) (“When confronting decisions of prior 

panels . . . we are bound by not only the result but also those portions of the 

opinion necessary to that result.”). 

The Board’s argument that Section 7 creates a substantive right to 

participate in class and collective actions ignores Horton’s contrary holding

that “[t]he use of class action procedures . . . is not a substantive right.” Horton, 

737 F.3d at 357. Moreover, the Board’s assertion that the waiver in Horton 

was permissible only because the FAA overrode the NLRA contradicts our 

determination in Horton that the statutes are not in conflict. See id. at 361. 

Finally, the Board’s suggestion that Horton is distinguishable because the FAA 

empowers arbitration agreements to waive rights that other agreements 

cannot waive is contrary to Supreme Court precedent, which holds that the 

FAA places arbitration agreements “on an equal footing with other contracts.” 

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011). For all these 

reasons, Horton precludes the Board’s position. 

We observed in Horton that “a substantive right to proceed collectively 

has been foreclosed by prior decisions.” Horton, 737 F.3d at 361. That is why, 

even before Horton, a district court upheld the very waiver that is at issue in 

this case, explaining that “there is no logical reason to distinguish a waiver in 

the context of an arbitration agreement from a waiver in the context of any 

other contract” and that “class action waivers are upheld because they are 

contractual provisions that do not affect any substantive rights.” Palmer v. 

Convergys Corp., No. 7:10-CV-145, 2012 WL 425256, at *2 (M.D. Ga. Feb. 9, 

2012). After our decision in Horton, the idea that Section 7 protects a 

substantive right to participate in class and collective actions is still more 

 Case: 15-60860 Document: 00514106079 Page: 6 Date Filed: 08/08/2017
No. 15-60860

7 

firmly foreclosed. Simply put, the Board’s position that Section 7 guarantees 

a substantive right of employees to participate in class and collective actions 

against their employers is contrary to our binding precedent.7

The dissenting opinion asserts that the Supreme Court, the Fifth Circuit, 

and the Board have each “made plain that class and collective actions 

constitute ‘other concerted activities’ within Section 7 of the NLRA.” However, 

the cases on which the dissenting opinion relies do not stand for this 

proposition. 

The Supreme Court opinion on which the dissenting opinion relies is 

Eastex, Inc. v. NLRB, 437 U.S. 556 (1978). This decision involved the right to 

distribute newsletters, but included a statement in dicta about the right to 

resort to administrative and judicial fora. Id. at 565–66. The Supreme Court 

expressly declined to address “the question of what may constitute ‘concerted’ 

activities in [the litigation] context” for purposes of Section 7. Id. at 566 n.15. 

Thus, Eastex did not make plain that class and collective actions in particular 

constitute “other concerted activities” for purposes of the NLRA. 

The Fifth Circuit opinion on which the dissenting opinion relies is Altex 

Ready Mixed Concrete Corp. v. NLRB, 542 F.2d 295 (5th Cir. 1976). This case 

provides an example of a concerted activity in the litigation context, holding 

that a union’s filing of a civil action is protected by the NLRA. Id. at 297. It 

does not hold that the phrase “other concerted activities” contemplates 

participation in class and collective actions. As explained above, Horton has 

decided the question before us, and we are not free to adopt the reasoning that 

 

7 To the extent the dissenting opinion disagrees with this holding, its disagreement is 

with Horton, which we are bound to follow. Jacobs, 548 F.3d at 378.

 Case: 15-60860 Document: 00514106079 Page: 7 Date Filed: 08/08/2017
No. 15-60860

8 

we rejected in Horton or to extend Supreme Court and Fifth Circuit decisions 

in a manner contrary to Horton.8 See Jacobs, 548 F.3d at 378.

III.

Section 8(a)(1) of the NLRA states that “[i]t shall be an unfair labor 

practice for an employer . . . to interfere with, restrain, or coerce employees in 

the exercise of the rights guaranteed in [Section 7].” 29 U.S.C. § 158(a)(1). The 

Board found that Convergys violated Section 8(a)(1) both by requiring 

prospective employees to sign a class and collective action waiver and by 

seeking to enforce the waiver against an employee. It held that both actions 

abrogated the same Section 7 right to participate in class and collective actions. 

As explained above, Section 7’s guarantee of the right “to engage in other 

concerted activities for the purpose of . . . other mutual aid or protection,” 29 

U.S.C. § 157, does not include a right to participate in class and collective 

actions. Accordingly, abrogation of the asserted right to participate in class 

and collective actions was not abrogation of a Section 7 right and therefore does 

not constitute an unfair labor practice under Section 8(a)(1). Contrary to the 

determination of the Board, Convergys did not engage in an unfair labor 

practice for purposes of Section 8(a)(1) by requiring applicants to sign a waiver 

or by seeking to enforce the waiver.9

IV.

For the reasons stated above, we GRANT Convergys’s application for 

review of the National Labor Relations Board order and DENY the Board’s 

cross-application for enforcement of the order.

 

8 The dissenting opinion also relies on two Board decisions. Unlike our own precedent, 

Board decisions are not binding on us.

9 Convergys argues alternatively that a Section 7 right to participate in class and 

collective actions is waivable. Because we decide this case based on our binding precedent, 

we do not reach this argument.

 Case: 15-60860 Document: 00514106079 Page: 8 Date Filed: 08/08/2017
No. 15-60860

9 

STEPHEN A. HIGGINSON, Circuit Judge, concurring in judgment: 

I am persuaded by Judge Higginbotham’s thoughtful conclusion that 

maintaining and enforcing a class and collective action waiver violates the

NLRA, but I also agree with Judge Elrod that our rule of orderliness forecloses 

our ability to take that position in this case. In Horton, we held that the use of 

class action procedures is not a substantive right under Section 7 of the NLRA 

and concluded that “the NLRA has no inherent conflict with the FAA.” D.R. 

Horton, Inc. v. N.L.R.B., 737 F.3d 344, 361 (5th Cir. 2013). I view the Board’s 

interpretation of Section 7 as irreconcilable with that precedent.1

A clear explanation of the distinction between substantive and 

procedural rights is elusive, but I find helpful the Ninth Circuit’s discussion in 

Morris v. Ernst & Young, LLP, 834 F.3d 975, 985–87 (9th Cir. 2016), cert. 

granted, 137 S. Ct. 809 (2017). As that court explained, substantive rights are 

“the essential, operative protections of a statute,” whereas “procedural rights 

are the ancillary, remedial tools that help secure the substantive right.” Id. at 

985. Critically, “substantive rights cannot be waived in arbitration 

agreements.” Id. But the problem with an arbitration contract that waives 

substantive rights “is not that it requires arbitration; it is that the contract 

term defeats a substantive federal right . . . .” Id. Ultimately, the Ninth Circuit 

concluded that “[t]he rights established in § 7 of the NLRA—including the right 

of employees to pursue legal claims together—are substantive. They are the 

central, fundamental protections of the Act, so the FAA does not mandate the 

enforcement of a contract that alleges their waiver.” Id. at 986. Our court in 

 

1 Although the Board did not urge it, I find intriguing Judge Higginbotham’s argument 

that the distinction between “procedural” and “substantive” rights might have no bearing 

outside of the arbitration context, which would render irrelevant Horton’s rejection of a 

“substantive” right to class and collective action under the NLRA.

 Case: 15-60860 Document: 00514106079 Page: 9 Date Filed: 08/08/2017
No. 15-60860

10

Horton came to the opposite conclusion. According to Horton, the NLRA 

provides no substantive right—that is, as I understand it, no nonwaivable 

right—to class or collective action. 

But regardless of the nature of the rights protected by the Section 7, I 

find it difficult to reconcile a Section 7 guarantee to class and collective action 

with Horton’s conclusion that there is no “inherent conflict” between the NLRA 

and the FAA. Indeed, if Section 7 encompassed such a right and prohibited its 

prospective waiver as the Board urges, there would appear to be an inherent 

conflict between the NLRA and our interpretation of the FAA as mandating 

enforcement of contracts compelling individual arbitration. 

I read Horton as interpreting the NLRA narrowly to avoid conflict with 

the FAA. However, as this case illustrates, interpreting a statute to avoid 

conflict in a narrow band of cases may have the unintended consequence of 

forever limiting rights that the statute was intended to protect. Like the 

Second Circuit, “[i]f we were writing on a clean slate,” I would urge that this 

court adopt Chief Judge Wood’s and Chief Judge Thomas’s reasoned 

understandings of Section 7’s scope. Patterson v. Raymours Furniture Co., 659 

F. App’x 40, 43 (2d Cir. 2016), as corrected (Sept. 7, 2016), as corrected (Sept. 

14, 2016) (unpublished) (summary order); Lewis v. Epic Sys. Corp., 823 F.3d 

1147 (7th Cir. 2016), cert. granted, 137 S. Ct. 809 (2017); Morris, 834 F.3d at 

975. The Supreme Court may soon do so or may otherwise decide the FAA 

controversy in a manner that compels reconsideration of our decision today. 

Constrained by our precedent, however, I concur in the judgment only.

 Case: 15-60860 Document: 00514106079 Page: 10 Date Filed: 08/08/2017
No. 15-60860

11

PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:

This case concerns whether a company’s class and collective action 

waiver violates Section 8(a)(1) of the National Labor Relations Act (“NLRA” or 

“the Act”), 29 U.S.C. §§ 151, et seq. Although this Court has held time and again 

that such waivers are permissible,1 one important distinction makes the 

waiver in this case different: there is no arbitration agreement. Without being 

contained in an arbitration agreement and thus shielded by the protective force 

of the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq., a bare class and 

collective action waiver violates Section 8(a)(1).2 

Enacted by Congress in 1935, the NLRA “affords employees the rights to 

organize and to engage in collective bargaining free from employer 

interference.”3 Two years after the NLRA’s enactment, the Supreme Court 

declared that “the statute goes no further than to safeguard the right of 

employees to self-organization and to select representatives of their own 

choosing for collective bargaining or other mutual protection without restraint 

or coercion by their employer. That is a fundamental right.”4

Two provisions of the Act are at issue here. First, Section 7, which 

provides: 

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 

 

1 E.g., D.R. Horton, Inc. v. N.L.R.B., 737 F.3d 344, 348 (5th Cir. 2013); Murphy Oil 

USA, Inc. v. N.L.R.B., 808 F.3d 1013, 1015 (5th Cir. 2015), cert. granted, 137 S. Ct. 809 (2017); 

Chesapeake Energy Corp. v. N.L.R.B., 633 F. App’x 613, 614–15 (5th Cir. 2016) (per curiam) 

(unpublished).

2 29 U.S.C. § 158(a) (“It shall be an unfair labor practice for an employer . . . to 

interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 

157 of this title[.]”).

3 N.L.R.B. v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 573 (1994). 4 N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937). 

 Case: 15-60860 Document: 00514106079 Page: 11 Date Filed: 08/08/2017
No. 15-60860

12

concerted activities for the purpose of collective bargaining or other 

mutual aid or protection . . .5

Second, Section 8(a)(1) makes it “an unfair labor practice for an 

employer . . . to interfere with, restrain, or coerce employees in the exercise of 

the rights guaranteed in section 157 of this title[.]”6 Putting the two provisions 

together, the question in this case is whether maintaining and enforcing a class 

and collective action waiver constitute “unfair labor practice[s]” that interfere 

with an employee’s right to “engage in other concerted activities for the purpose 

of . . . other mutual aid or protection.” Distilled further, the question is whether 

class and collective actions constitute “other concerted activities for the 

purpose of . . . mutual aid or protection.” 

The plain language informs the answer. To this point, I agree with the 

analysis of Chief Judge Wood in the Seventh Circuit: 

The ordinary meaning of the word “concerted” is: “jointly arranged, 

planned, or carried out; coordinated.” Concerted, New Oxford 

American Dictionary 359 (3d ed. 2010). Activities are “thing[s] that 

a person or group does or has done” or “actions taken by a group in 

order to achieve their aims.” Id. at 16. Collective or class legal 

proceedings fit well within the ordinary understanding of 

“concerted activities.”7

But we need not stop at the plain language—which the majority passes 

by—as the Supreme Court’s doctrine supports the same conclusion. “The term 

‘concerted activit[y]’ is not defined in the Act but it clearly enough embraces 

the activities of employees who have joined together in order to achieve 

 

5 29 U.S.C. § 157 (emphasis added).

6 29 U.S.C. § 158(a).

7 Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1153 (7th Cir. 2016), cert. granted, 137 S. 

Ct. 809 (2017); accord BLACK’S LAW DICTIONARY (9th ed. 2009) (defining “concerted activity” 

as “[a]ction by employees concerning wages or working conditions”).

 Case: 15-60860 Document: 00514106079 Page: 12 Date Filed: 08/08/2017
No. 15-60860

13

common goals.”8 Class and collective actions fit comfortably in this 

understanding. Further, in Eastex, Inc. v. N.L.R.B., the Court explained: 

The 74th Congress knew well enough that labor’s cause often is 

advanced on fronts other than collective bargaining and grievance 

settlement within the immediate employment context. It 

recognized this fact by choosing, as the language of § 7 makes 

clear, to protect concerted activities for the somewhat broader 

purpose of ‘mutual aid or protection’ as well as for the narrower 

purposes of ‘self-organization’ and ‘collective bargaining.’ Thus, it 

has been held that the ‘mutual aid or protection’ clause protects 

employees from retaliation by their employers when they seek to 

improve working conditions through resort to administrative and 

judicial forums, and that employees’ appeals to legislators to 

protect their interests as employees are within the scope of this 

clause. To hold that activity of this nature is entirely 

unprotected—irrespective of location or the means employed—

would leave employees open to retaliation for much legitimate 

activity that could improve their lot as employees.9

The majority opinion dances away from Eastex by pointing to its 

language that the Supreme Court “expressly declined to address ‘the question 

of what may constitute “concerted” activities in [the litigation] context’ for 

purposes of Section 7.” Though the majority correctly recites the Supreme 

Court’s statement in footnote 15,10 it misses the forest for a tree. 

In Eastex, the Supreme Court was faced with a version of the same 

question we face here: whether an employer violated § 8(1)(a) of the NLRA by 

interfering with its employees’ § 7 rights to engage in “concerted activities for 

the purpose of . . . mutual aid or protection.”11 But instead of addressing 

 

8 N.L.R.B. v. City Disposal Sys. Inc., 465 U.S. 822, 830 (1984) (citation omitted).

9 437 U.S. 556, 565–67 (1978) (citations omitted) (emphasis added). 10 See id. at 566 n.15 (“We do not address here the question of what may constitute 

‘concerted’ activities in this context.” (citation omitted)).

11 Id. at 558.

 Case: 15-60860 Document: 00514106079 Page: 13 Date Filed: 08/08/2017
No. 15-60860

14

whether class and collective actions constituted protected concerted activities, 

Eastex addressed whether employees’ distribution of a pro-union newsletter 

constituted protected concerted activities.12 The heart of Eastex was the 

Court’s interpretation of § 7’s “mutual aid or protection” clause.13 And in 

holding that the distribution of the pro-union newsletter constituted protected 

activity,14 the thrust of the Court’s reasoning was its rejection of a narrow 

interpretation of § 7.15 In rejecting a narrow reading of § 7 and acknowledging 

Congress’s recognition that “labor’s cause often is advanced on fronts other 

than collective bargaining and grievance settlement,”16 Eastex supports the 

understanding that class and collective actions come within § 7.

Returning to footnote 15, the majority elides the balance of that footnote: 

a citation to this Court’s opinion in Altex Ready Mixed Concrete Corp. v. NLRB, 

542 F.2d 295, 297 (5th Cir. 1976). Two years before Eastex, this Court in Altex 

explicitly found legal actions encompassed in § 7.17 That case, authored by 

Judge Ainsworth, stemmed from “a labor-management agreement provision 

concerning whether management could ‘require’ drivers to load red dye into 

concrete mixer drums.”18 The drivers instituted a strike, in connection with 

which “the drivers’ union, Teamsters, Chauffeurs, Warehousemen & Helpers, 

 

12 See id. 13 See id. at 562 (“Because of apparent differences among the Courts of Appeals as to 

the scope of rights protected by the ‘mutual aid or protection’ clause of § 7, we granted 

certiorari.” (citations omitted)).

14 See id. at 570.

15 See, e.g., id. at 565 (“We . . . find no warrant for petitioner’s view that employees 

lose their protection under the ‘mutual aid or protection’ clause when they seek to improve 

terms and conditions of employment or otherwise improve their lot as employees through 

channels outside the immediate employee-employer relationship.”).

16 Id. at 565.

17 542 F.2d at 297. 18 Id. at 296.

 Case: 15-60860 Document: 00514106079 Page: 14 Date Filed: 08/08/2017
No. 15-60860

15

Local No. 5, filed an action in a Louisiana state court asking that Altex 

management be enjoined from requiring drivers to load red dye.”19 This Court 

found that filing to be protected by § 7, explaining that “[g]enerally, filing by 

employees of a labor related civil action is protected activity under section 7 of 

the NLRA unless the employees acted in bad faith.”20 

The majority’s claim that Altex “does not hold that the phrase ‘other 

concerted activities’ contemplates participation in class and collective actions” 

is not sustainable. The ALJ in Altex had “found that filing the state court action 

against Altex was a concerted activity protected under section 7 of the 

NLRA.”21 This Court, in turn, held that the ALJ’s findings were “supported by 

substantial evidence, and that they warrant[ed] the inferences drawn from 

them.”22 Altex, a binding decision, supplies the answer in this case in its 

affirmance that a “filing by employees”—which class and collective actions 

are—is a protected concerted activity under § 7. With respect, the majority’s 

choice to apply Horton instead of Altex forgets our rule of orderliness, under 

which the earlier opinion controls. 

That group legal actions are encompassed in § 7 is consistent with other 

circuits’ understanding.23 Importantly, the NLRB itself understands class and 

 

19 Id. 20 Id. at 297 (emphasis added) (citations omitted).

21 Id. at 296.

22 Id. at 297 (citation omitted).

23 Brady v. Nat’l Football League, 644 F.3d 661, 673 (8th Cir. 2011) (“[A] lawsuit filed 

in good faith by a group of employees to achieve more favorable terms or conditions of

employment is ‘concerted activity’ under § 7 . . . .” (citations omitted)); Leviton Mfg. Co. v. 

N.L.R.B., 486 F.2d 686, 689 (1st Cir. 1973) (“[T]he filing of a labor related civil action by a 

group of employees is ordinarily a concerted activity protected by § 7, unless the employees 

acted in bad faith.” (citations omitted)).

 Case: 15-60860 Document: 00514106079 Page: 15 Date Filed: 08/08/2017
No. 15-60860

16

collective actions to fall within § 7’s protections.24 In Spandsco Oil & Royalty 

Co., for example, the NLRB found that three union members’ suit for overtime 

back pay constituted protected concerted activity.25 As the suit followed an 

employee’s discussions about pay due under the Fair Labor Standards Act, it 

is fair to assume that the suit was in fact an FLSA action.26 As for class actions, 

in Harco Trucking, LLC & Scott Wood, the NLRB affirmed an ALJ’s finding 

that an employer “violated Section 8(a)(1) of the Act by refusing to hire Wood 

because he engaged in the protected concerted activity of filing and maintaining 

[a] class action lawsuit[.]”27 “Like other administrative agencies, the NLRB is 

entitled to judicial deference when it interprets an ambiguous provision of a 

statute that it administers.”28 This Court is obliged to “enforce the Board’s 

order if its construction of the statute is reasonably defensible”29 regardless of 

whether we would come to a different conclusion on first impression. The 

majority slights this well-established standard of review, footed in the more 

well-established principle of judicial restraint. 

 

24 See Spandsco Oil & Royalty Co., 42 NLRB 942, 949 (1942); In Re 127 Rest. Corp., 

331 NLRB 269, 275 (2000) (“It is well settled that the filing of a civil action by employees is 

protected activity unless done with malice or in bad faith.” (citations omitted)).

25 42 NLRB at 949.

26 See id. at 948.

27 344 NLRB 478, 478–79 (2005) (emphasis added).

28 Lechmere, Inc. v. N.L.R.B., 502 U.S. 527, 536 (1992) (citations omitted); accord

N.L.R.B. v. Fin. Inst. Employees of Am., Local 1182, Chartered by United Food & Commercial 

Workers Int’l Union, AFL-CIO, 475 U.S. 192, 202 (1986) (“Our cases have previously 

recognized the Board’s broad authority to construe provisions of the Act, and have deferred 

to Board decisions that are not irrational or inconsistent with the Act.” (citations omitted));

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (“If, however, 

the court determines Congress has not directly addressed the precise question at issue, the 

court does not simply impose its own construction on the statute, as would be necessary in 

the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous 

with respect to the specific issue, the question for the court is whether the agency’s answer 

is based on a permissible construction of the statute.” (footnotes omitted)).

29 Murphy Oil USA, 808 F.3d at 1017 (citation and quotation marks omitted).

 Case: 15-60860 Document: 00514106079 Page: 16 Date Filed: 08/08/2017
No. 15-60860

17

The majority also relies on a statement from D.R. Horton that “under the 

Board’s interpretation, ‘the NLRA would have to be protecting a right of access 

to a procedure that did not exist when the NLRA was (re)enacted.’”30 This 

incorrectly suggests that Rule 23 was the origin of group litigation. Not so. 

Rule 23 did not create, but gave discipline to, group litigation. Nor is it a 

sustainable assertion that class actions are not concerted, contrary to the 

understanding of one of my colleagues in the Sixth Circuit.31 Rule 23 at its core 

insists that class representatives’ interests coincide with the members of the 

class. And that class actions to be certified insist upon that community of 

interest only makes it more clear that in filing a class action, employees have 

“joined together in order to achieve common goals.”32

The Supreme Court, this Court, and the NLRB, have each made plain 

that class and collective actions constitute “other concerted activities” within 

§ 7 of the NLRA. Consequently, when an employer like Convergys requires an 

applicant to waive class and collective actions, it has “interfere[d] with” that 

employee’s right “to engage in other concerted activities for the purpose of . . . 

other mutual aid or protection[.]”33 The Board’s decision that Convergys 

violated Section 8(a)(1) of the NLRA should be enforced. 

 

30 D.R. Horton, 737 F.3d at 362.

31 Nat’l Labor Relations Bd. v. Alternative Entm’t, Inc., 858 F.3d 393, 415 (6th Cir. 

2017) (Sutton, J., concurring in part and dissenting in part) (“Even if procedure were relevant 

to ‘concertedness,’ there is nothing inherently ‘concerted’ about the class action . . . A single 

plaintiff can litigate a class action to completion without any intervention by or material 

support from any other class members. This sort of representative action is not necessarily 

concerted. If anything, it risks undermining genuine group action by permitting the 

representative plaintiff to stand in for all nonparticipating parties.”).

32 City Disposal Sys. Inc., 465 U.S. at 830 (citation omitted).

33 29 U.S.C. § 157.

 Case: 15-60860 Document: 00514106079 Page: 17 Date Filed: 08/08/2017
No. 15-60860

18

Plain language and controlling precedent notwithstanding, the majority 

claims that “[t]his court has already rejected the Board’s position that Section 

7 guarantees a right to participate in class or collective actions[.]” We have not. 

In the seminal cases of D.R. Horton and Murphy Oil, this Court held that class 

and collective action waivers in arbitration agreements do not violate Section 

8(a)(1).34 To ignore the arbitration context is to rewrite these opinions and 

brush aside the very reason the waivers at issue were upheld. 

Even a cursory reading of D.R. Horton shows that its reasoning is limited 

to arbitration cases. The first sentences reveal its moorings to arbitration and 

the FAA: 

The National Labor Relations Board held that D.R. Horton, Inc. 

had violated the [NLRA] by requiring its employees to sign an 

arbitration agreement that, among other things, prohibited an 

employee from pursuing claims in a collective or class action. On 

petition for review, we disagree and conclude that the Board’s 

decision did not give proper weight to the Federal Arbitration Act.35

The D.R. Horton majority acknowledged the support for the Board’s 

understanding that class and collective actions are protected by § 736 before 

sharply pivoting to the FAA: “To stop here, though, is to make the NLRA the 

only relevant authority. The Federal Arbitration Act [] has equal importance 

in our review. Caselaw under the FAA points us in a different direction than 

the course taken by the Board.”37 The D.R. Horton Court went on to summarize 

the Board’s position with respect to the interaction between the NLRA and the 

 

34 D.R. Horton, 737 F.3d at 362; Murphy Oil USA, 808 F.3d at 1018.

35 D.R. Horton, 737 F.3d at 348 (emphasis added).

36 See id. at 356–57.

37 Id. at 357.

 Case: 15-60860 Document: 00514106079 Page: 18 Date Filed: 08/08/2017
No. 15-60860

19

FAA.38 It then evaluated that reasoning, focusing on whether the two 

exceptions to the enforcement of arbitration agreements applied.39 It concluded 

that the FAA’s savings clause was not implicated40 and that “[t]he NLRA 

should not be understood to contain a congressional command overriding 

application of the FAA.”41 The D.R. Horton opinion concluded its analysis by 

remarking that “[t]he issue here is narrow: do the rights of collective action 

embodied in this labor statute make it distinguishable from cases which hold 

that arbitration must be individual arbitration?”42 The opinion’s dependence 

on arbitration is clear. As it was in Murphy Oil.43 Those cases did not hold that, 

absent the alternative processes of arbitration, class and collective action 

waivers are valid. They thus do not control here. 

The majority’s insistence otherwise is partly premised on an irrelevant 

distinction between procedural and substantive rights. Such reasoning is 

primarily a creature of arbitration law.44 The majority surely agrees. After all, 

almost every case it cites in support of its proposition that “the use of a class 

 

38 See id. at 358.

39 Id. (“We start with the requirement under the FAA that arbitration agreements 

must be enforced according to their terms. Two exceptions to this rule are at issue here: (1) 

an arbitration agreement may be invalidated on any ground that would invalidate a contract 

under the FAA’s ‘saving clause,’; and (2) application of the FAA may be precluded by another 

statute’s contrary congressional command[.]” (citations omitted)).

40 Id. at 360 (“The saving clause is not a basis for invalidating the waiver of class 

procedures in the arbitration agreement.”).

41 Id. at 362.

42 Id. (citation omitted).

43 Murphy Oil USA, 808 F.3d at 1018 (“Murphy Oil committed no unfair labor practice 

by requiring employees to relinquish their right to pursue class or collective claims in all 

forums by signing the arbitration agreements at issue here.” (citation omitted)).

44 See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 

(1985).

 Case: 15-60860 Document: 00514106079 Page: 19 Date Filed: 08/08/2017
No. 15-60860

20

or collective action is a procedure rather than a substantive right” is an 

arbitration case.45 

As then-Judge Roberts explained, “[s]tatutory claims may be subject to 

agreements to arbitrate, so long as the agreement does not require the 

claimant to forgo substantive rights afforded under the statute.”46 This is 

because arbitration is understood as an alternative forum to the courts. 

Waiving judicial procedural rights in favor of arbitration is permissible 

precisely because the parties trade one forum and its attendant procedures for 

another.47 It is within this framework that this Court in D.R. Horton found 

that class action procedures are not a substantive right.48 As a result, they 

could be waived in favor of arbitration. Outside of the arbitration context, 

however, characterizing the right as procedural does not allow a required 

“waiver” since there is no alternative forum. Accordingly, in this nonarbitration case, the right to class and collective actions is best characterized 

 

45 D.R. Horton, 737 F.3d at 357; Reed v. Fla. Metro. Univ., Inc., 681 F.3d 630, 631–32 

(5th Cir. 2012), abrogated on other grounds by Oxford Health Plans LLC v. Sutter, 133 S. Ct. 

2064 (2013) (appeal of arbitration award for class arbitration); Carter v. Countrywide Credit 

Indus., Inc., 362 F.3d 294, 296–97 (5th Cir. 2004) (affirming judgment to compel arbitration); 

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 23 (1991) (considering “whether a 

claim under the Age Discrimination in Employment Act of 1967 . . . can be subjected to 

compulsory arbitration pursuant to an arbitration agreement”).

46 Booker v. Robert Half Int’l, Inc., 413 F.3d 77, 79 (D.C. Cir. 2005) (emphasis added) 

(citing Gilmer, 500 U.S. at 26; Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1481 (D.C. Cir.

1997)).

47 Mitsubishi Motors Corp., 473 U.S. at 628 (“By 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. It trades the procedures and 

opportunity for review of the courtroom for the simplicity, informality, and expedition of 

arbitration.”); accord Gilmer, 500 U.S. at 31.

48 D.R. Horton, 737 F.3d at 357.

 Case: 15-60860 Document: 00514106079 Page: 20 Date Filed: 08/08/2017
No. 15-60860

21

as simply a statutory right protected from employer-required waiver.49 The 

substantive/procedural dichotomy has no operative effect.50

One need only look to the other provisions in § 7 to understand. Section 

7 guarantees the right to “self-organization” and “to bargain collectively.” Both 

could be reasonably understood as procedural in nature, as they are processes 

for achieving substantive ends. Yet, just as an employer cannot require 

employees to waive their right to bargain collectively by characterizing 

bargaining as procedural,51 an employer cannot require employees to waive 

their right to class and collective actions. In its final footnote, the majority 

notes, but declines to address, Convergys’ alternative argument that Section 7 

rights may be waived. But of course § 7 rights are not waivable; § 8(a)(1) says 

so.52 

The majority fails to appreciate the role of the FAA in enforcing 

agreements to arbitrate. In 2013, this Court decided D.R. Horton, affirmed in 

2015 by Murphy Oil. Both cases held that class and collective action waivers 

in arbitration agreements were permissible.53 The following year, four other 

 

49 See Alternative Entm’t, Inc., 858 F.3d at 407 (“[E]ven if the right to concerted legal 

action is procedural, rather than substantive, it is still a right guaranteed by § 7 of the 

NLRA.”).

50 See Killion v. KeHE Distributors, LLC, 761 F.3d 574, 592 (6th Cir. 2014) (arbitration 

agreement cases do not “speak to the validity of a collective-action waiver outside of the 

arbitration context”).

51 See Nat’l Licorice Co. v. N.L.R.B., 309 U.S. 350, 359–61 (1940) (certain restraints 

on collective bargaining violated Act).

52 29 U.S.C. § 158(a) (it is “an unfair labor practice for an employer . . . to interfere 

with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of 

this title”).

53 See D.R. Horton, 737 F.3d at 348; Murphy Oil USA, 808 F.3d at 1018. Not all judges 

in our Circuit have embraced the reasoning of those opinions. See D.R. Horton, 737 F.3d at 

364 (Graves, J., concurring in part and dissenting in part) (agreeing with NLRB that 

arbitration agreement interfered with § 7 rights); SF Markets, L.L.C. v. N.L.R.B., No. 16-

 Case: 15-60860 Document: 00514106079 Page: 21 Date Filed: 08/08/2017
No. 15-60860

22

circuits decided the issue. The Eighth and Second Circuits agreed that the 

waivers were permissible;54 the Seventh and Ninth Circuits disagreed.55 This 

year the Supreme Court granted certiorari in the Ninth, Seventh, and Fifth 

Circuit cases and consolidated them.56 After the Court’s grant of certiorari, the 

Sixth Circuit also weighed in, siding with the Seventh and Ninth Circuits.57

Whether class and collective action waivers within arbitration agreements are 

permissible will soon be decided by the Supreme Court. 

Today we decide whether a class and collective action waiver demanded 

as a condition of employment sans arbitration agreement is permissible.58 The 

 

60186, 2016 WL 7468041, at *1 (5th Cir. July 26, 2016) (per curiam) (unpublished) (Dennis, 

J., concurring) (urging en banc reconsideration of issue).

54 Cellular Sales of Missouri, LLC v. N.L.R.B., 824 F.3d 772, 776 (8th Cir. 2016)

(“Cellular Sales did not violate section 8(a)(1) by requiring its employees to enter into an 

arbitration agreement that included a waiver of class or collective actions in all forums to 

resolve employment-related disputes.”); Patterson v. Raymours Furniture Co., Inc., 659 F. 

App’x 40, 43 (2d Cir. 2016), as corrected (Sept. 7, 2016), as corrected (Sept. 14, 2016) 

(unpublished) (summary order) (“If we were writing on a clean slate, we might well be 

persuaded, for the reasons forcefully stated in Chief Judge Wood’s and Chief Judge Thomas’s 

opinions in Lewis and Morris, to join the Seventh and Ninth Circuits and hold that the EAP’s 

waiver of collective action is unenforceable. But we are bound by our Court’s decision in 

Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013), which aligns our Circuit on 

the other side of the split.”); see also Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 

1326, 1327 (11th Cir. 2014) (arbitration agreement waiving FLSA collective actions 

enforceable under FAA).

55 Lewis, 823 F.3d at 1151 (holding arbitration agreement that barred collective 

arbitration and collective action in other forums violated NLRA and was unenforceable under 

FAA); Morris v. Ernst & Young, LLP, 834 F.3d 975, 979 (9th Cir. 2016) (concluding that 

arbitration agreement that precluded employees from bringing concerted legal claims about 

their employment violated NLRA, and vacating order compelling individual arbitration).

56 Alternative Entm’t, 858 F.3d at 401 n.4 (citing ––– U.S. ––––, 137 S. Ct. 809 (2017)).

57 Id. at 408 (“[A]n arbitration provision requiring employees covered by the NLRA 

individually to arbitrate all employment-related claims is not enforceable. Such a provision 

violates the NLRA’s guarantee of the right to collective action and, because it violates the 

NLRA, falls within the FAA’s saving clause.”).

58 The Sixth Circuit has decided a similar issue. Killion, 761 F.3d at 579, 592 (holding 

class and collective action waiver outside of arbitration agreement invalid in FLSA case, and 

noting “no countervailing federal policy that outweighs the policy articulated in the FLSA”).

 Case: 15-60860 Document: 00514106079 Page: 22 Date Filed: 08/08/2017
No. 15-60860

23

language of § 7 cannot be plainer: class and collective actions are “other 

concerted activities for the purpose of . . . mutual aid or protection.”59 This 

conclusion is reinforced by Supreme Court precedent, this Court’s precedent, 

and the NLRB’s interpretation of the Act, to which we owe deference. Because 

such actions are rights protected by § 7, employers cannot interfere with them 

by forcing employees to waive them.60 I would enforce the Board’s orders, and 

so I dissent. 

 

59 29 U.S.C. § 157. 60 29 U.S.C. § 158(a).

 Case: 15-60860 Document: 00514106079 Page: 23 Date Filed: 08/08/2017