584 U.S. ___ (2018)
JACOB LEWIS; EPIC SYSTEMS CORPORATION, PETITIONER ERNST & YOUNG LLP, ET AL., PETITIONERS
STEPHEN MORRIS, ET AL. AND NATIONAL LABOR RELATIONS BOARD, PETITIONER
MURPHY OIL USA, INC., ET AL.
October 2, 2017
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
of these cases, an employer and employee entered into a
contract providing for individualized arbitration proceedings
to resolve employment disputes between the parties. Each
employee nonetheless sought to litigate Fair Labor Standards
Act and related state law claims through class or collective
actions in federal court. Although the Federal Arbitration
Act generally requires courts to enforce arbitration
agreements as written, the employees argued that its
"saving clause" removes this obligation if an
arbitration agreement violates some other federal law and
that, by requiring individualized proceedings, the agreements
here violated the National Labor Relations Act. The employers
countered that the Arbitration Act protects agreements
requiring arbitration from judicial interference and that
neither the saving clause nor the NLRA demands a different
conclusion. Until recently, courts as well as the National
Labor Relations Board's general counsel agreed that such
arbitration agreements are enforceable. In 2012, however, the
Board ruled that the NLRA effectively nullifies the
Arbitration Act in cases like these, and since then other
courts have either agreed with or deferred to the Board's
Congress has instructed in the Arbitration Act that
arbitration agreements providing for individualized
proceedings must be enforced, and neither the Arbitration
Act's saving clause nor the NLRA suggests otherwise. Pp.
Arbitration Act requires courts to enforce agreements to
arbitrate, including the terms of arbitration the parties
select. See 9 U.S.C. §§2, 3, 4. These emphatic
directions would seem to resolve any argument here. The
Act's saving clause-which allows courts to refuse to
enforce arbitration agreements "upon such grounds as
exist at law or in equity for the revocation of any contract,
" §2-recognizes only " 'generally
applicable contract defenses, such as fraud, duress, or
unconscionability, '" AT&T Mobility LLC v.
Conception, 563 U.S. 333, 339, not defenses targeting
arbitration either by name or by more subtle methods, such as
by "interfer[ing] with fundamental attributes of
arbitration, " id., at 344. By challenging the
agreements precisely because they require individualized
arbitration instead of class or collective proceedings, the
employees seek to interfere with one of these fundamental
attributes. Pp. 5-9.
employees also mistakenly claim that, even if the Arbitration
Act normally requires enforcement of arbitration agreements
like theirs, the NLRA overrides that guidance and renders
their agreements unlawful yet. When confronted with two Acts
allegedly touching on the same topic, this Court must strive
"to give effect to both." Morton v.
Mancari, 417 U.S. 535, 551. To prevail, the employees
must show a " 'clear and manifest' "
congressional intention to displace one Act with another.
Ibid. There is a "stron[g] presum[ption]"
that disfavors repeals by implication and that "Congress
will specifically address" preexisting law before
suspending the law's normal operations in a later
statute. United States v. Fausto, 484 U.S. 439, 452,
employees ask the Court to infer that class and collective
actions are "concerted activities" protected by
§7 of the NLRA, which guarantees employees "the
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively . . ., and to engage
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, " 29
U.S.C. §157. But §7 focuses on the right to
organize unions and bargain collectively. It does not mention
class or collective action procedures or even hint at a clear
and manifest wish to displace the Arbitration Act. It is
unlikely that Congress wished to confer a right to class or
collective actions in §7, since those procedures were
hardly known when the NLRA was adopted in 1935. Because the
catchall term "other concerted activities for the
purpose of . . . other mutual aid or protection" appears
at the end of a detailed list of activities, it should be
understood to protect the same kind of things, i.e.,
things employees do for themselves in the course of
exercising their right to free association in the workplace.
NLRA's structure points to the same conclusion. After
speaking of various "concerted activities" in
§7, the statute establishes a detailed regulatory regime
applicable to each item on the list, but gives no hint about
what rules should govern the adjudication of class or
collective actions in court or arbitration. Nor is it at all
obvious what rules should govern on such essential issues as
opt-out and opt-in procedures, notice to class members, and
class certification standards. Telling too is the fact that
Congress has shown that it knows exactly how to specify
certain dispute resolution procedures, cf, e.g., 29
U.S.C. §§216(b), 626, or to override the
Arbitration Act, see, e.g., 15 U.S.C.
§1226(a)(2), but Congress has done nothing like that in
employees suggest that the NLRA does not discuss class and
collective action procedures because it means to confer a
right to use existing procedures provided by statute
or rule, but the NLRA does not say even that much. And if
employees do take existing rules as they find them, they must
take them subject to those rules' inherent limitations,
including the principle that parties may depart from them in
favor of individualized arbitration.
another contextual clue, the employees' underlying causes
of action arise not under the NLRA but under the Fair Labor
Standards Act, which permits the sort of collective action
the employees wish to pursue here. Yet they do not suggest
that the FLSA displaces the Arbitration Act, presumably
because the Court has held that an identical collective
action scheme does not prohibit individualized arbitration
proceedings, see Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 32. The employees' theory also
runs afoul of the rule that Congress "does not alter the
fundamental details of a regulatory scheme in vague terms or
ancillary provisions, " Whitman v. American Trucking
Assns., Inc., 531 U.S. 457, 468, as it would allow a
catchall term in the NLRA to dictate the particulars of
dispute resolution procedures in Article III courts or
arbitration proceedings-matters that are usually left to,
e.g., the Federal Rules of Civil Procedure, the
Arbitration Act, and the FLSA. Nor does the employees'
invocation of the Norris-LaGuardia Act, a predecessor of the
NLRA, help their argument. That statute declares
unenforceable contracts in conflict with its policy of
protecting workers' "concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, " 29 U.S.C. §102, and just as under the
NLRA, that policy does not conflict with Congress's
directions favoring arbitration.
confirms the Court's reading. The Court has rejected many
efforts to manufacture conflicts between the Arbitration Act
and other federal statutes, see, e.g. American Express
Co. v. Italian Colors Restaurant, 570 U.S. 228; and its
§7 cases have generally involved efforts related to
organizing and collective bargaining in the workplace, not
the treatment of class or collective action procedures in
court or arbitration, see, e.g., NLRB v. Washington
Aluminum Co., 370 U.S. 9.
the employees cannot expect deference under Chevron U.S.
A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, because Chevron's essential premises
are missing. The Board sought not to interpret just the NLRA,
"which it administers, " id., at 842, but
to interpret that statute in a way that limits the work of
the Arbitration Act, which the agency does not administer.
The Board and the Solicitor General also dispute the
NLRA's meaning, articulating no single position on which
the Executive Branch might be held "accountable to the
people." Id., at 865. And after "employing
traditional tools of statutory construction, "
id., at 843, n. 9, including the canon against
reading conflicts into statutes, there is no unresolved
ambiguity for the Board to address. Pp. 9-21.
16-285, 823 F.3d 1147, and No. 16-300, 834 F.3d 975, reversed
and remanded; No. 16-307, 808 F.3d 1013, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which
ROBERTS, C. J., and Kennedy, Thomas, and Alito, JJ., joined.
Thomas, J., filed a concurring opinion. GINSBURG, J., filed a
dissenting opinion, in which BREYER, SOTOMAYOR, and Kagan,
employees and employers be allowed to agree that any disputes
between them will be resolved through one-on-one arbitration?
Or should employees always be permitted to bring their claims
in class or collective actions, no matter what they agreed
with their employers?
matter of policy these questions are surely debatable. But as
a matter of law the answer is clear. In the Federal
Arbitration Act, Congress has instructed federal courts to
enforce arbitration agreements according to their
terms-including terms providing for individualized
proceedings. Nor can we agree with the employees'
suggestion that the National Labor Relations Act (NLRA)
offers a conflicting command. It is this Court's duty to
interpret Congress's statutes as a harmonious whole
rather than at war with one another. And abiding that duty
here leads to an unmistakable conclusion. The NLRA secures to
employees rights to organize unions and bargain collectively,
but it says nothing about how judges and arbitrators must try
legal disputes that leave the workplace and enter the
courtroom or arbitral forum. This Court has never read a
right to class actions into the NLRA-and for three quarters
of a century neither did the National Labor Relations Board.
Far from conflicting, the Arbitration Act and the NLRA have
long enjoyed separate spheres of influence and neither
permits this Court to declare the parties' agreements
three cases before us differ in detail but not in substance.
Take Ernst & Young LLP v. Morris. There Ernst
& Young and one of its junior accountants, Stephen
Morris, entered into an agreement providing that they would
arbitrate any disputes that might arise between them. The
agreement stated that the employee could choose the
arbitration provider and that the arbitrator could
"grant any relief that could be granted by ... a
court" in the relevant jurisdiction. App. in No. 16-300,
p. 43. The agreement also specified individualized
arbitration, with claims "pertaining to different
[e]mployees [to] be heard in separate proceedings."
Id., at 44.
his employment ended, and despite having agreed to arbitrate
claims against the firm, Mr. Morris sued Ernst & Young in
federal court. He alleged that the firm had misclassified its
junior accountants as professional employees and violated the
federal Fair Labor Standards Act (FLSA) and California law by
paying them salaries without overtime pay. Although the
arbitration agreement provided for individualized
proceedings, Mr. Morris sought to litigate the federal claim
on behalf of a nationwide class under the FLSA's
collective action provision, 29 U.S.C. §216(b). He
sought to pursue the state law claim as a class action under
Federal Rule of Civil Procedure 23.
& Young replied with a motion to compel arbitration. The
district court granted the request, but the Ninth Circuit
reversed this judgment. 834 F.3d 975 (2016). The Ninth
Circuit recognized that the Arbitration Act generally
requires courts to enforce arbitration agreements as written.
But the court reasoned that the statute's "saving
clause, " see 9 U.S.C. §2, removes this obligation
if an arbitration agreement violates some other federal law.
And the court concluded that an agreement requiring
individualized arbitration proceedings violates the NLRA by
barring employees from engaging in the "concerted
activit[y], " 29 U.S.C. §157, of pursuing claims as
a class or collective action.
Ikuta dissented. In her view, the Arbitration Act protected
the arbitration agreement from judicial interference and
nothing in the Act's saving clause suggested otherwise.
Neither, she concluded, did the NLRA demand a different
result. Rather, that statute focuses on protecting
unionization and collective bargaining in the workplace, not
on guaranteeing class or collective action procedures in
disputes before judges or arbitrators.
the Arbitration Act and the NLRA have long coexisted-they
date from 1925 and 1935, respectively- the suggestion they
might conflict is something quite new. Until a couple of
years ago, courts more or less agreed that arbitration
agreements like those before us must be enforced according to
their terms. See, e.g., Owen v. Bristol Care, Inc.,
702 F.3d 1050 (CA8 2013); Sutherland v. Ernst & Young
LLP, 726 F.3d 290 (CA2 2013); D. R. Horton, Inc. v.
NLRB, 737 F.3d 344 (CA5 2013); Iskanian v. CLS
Transp. Los Angeles, LLC, 59 Cal.4th 348, 327 P.3d 129
(2014); Tollman v. Eighth Jud. Dist. Court, 131 Nev.
71, 359 P.3d 113 (2015); 808 F.3d 1013 (CA5 2015) (case below
in No. 16-307).
National Labor Relations Board's general counsel
expressed much the same view in 2010. Remarking that
employees and employers "can benefit from the relative
simplicity and informality of resolving claims before
arbitrators, " the general counsel opined that the
validity of such agreements "does not involve
consideration of the policies of the National Labor Relations
Act." Memorandum GC 10-06, pp. 2, 5 (June 16, 2010).
recently things have shifted. In 2012, the Board- for the
first time in the 77 years since the NLRA's
adoption-asserted that the NLRA effectively nullifies the
Arbitration Act in cases like ours. D. R. Horton,
Inc., 357 N. L. R. B. 2277. Initially, this agency
decision received a cool reception in court. See D. R.
Horton, 737 F.3d, at 355-362. In the last two years,
though, some circuits have either agreed with the Board's
conclusion or thought themselves obliged to defer to it under
Chevron U.S. A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). See 823 F.3d 1147
(CA7 2016) (case below in No. 16-285); 834 F.3d 975 (case
below in No. 16-300); NLRB v. Alternative Entertainment,
Inc., 858 F.3d 393 (CA6 2017). More recently still, the
disagreement has grown as the Executive has disavowed the
Board's (most recent) position, and the Solicitor General
and the Board have offered us battling briefs about the
granted certiorari to clear the confusion. 580 U.S. (2017).
begin with the Arbitration Act and the question of its saving
adopted the Arbitration Act in 1925 in response to a
perception that courts were unduly hostile to arbitration. No
doubt there was much to that perception. Before 1925, English
and American common law courts routinely refused to enforce
agreements to arbitrate disputes. Scherk v.
Alberto-Culver Co., 417 U.S. 506, 510, n. 4 (1974). But
in Congress's judgment arbitration had more to offer than
courts recognized-not least the promise of quicker, more
informal, and often cheaper resolutions for everyone
involved. Id., at 511. So Congress directed courts
to abandon their hostility and instead treat arbitration
agreements as "valid, irrevocable, and
enforceable." 9 U.S.C. §2. The Act, this Court has
said, establishes "a liberal federal policy favoring
arbitration agreements." Moses H. Cone Memorial
Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)
(citing Prima Paint Corp. v. Flood & Conklin Mfg.
Co., 388 U.S. 395 (1967)); see id., at 404
(discussing "the plain meaning of the statute" and
"the unmistakably clear congressional purpose that the
arbitration procedure, when selected by the parties to a
contract, be speedy and not subject to delay and obstruction
in the courts").
only did Congress require courts to respect and enforce
agreements to arbitrate; it also specifically directed them
to respect and enforce the parties' chosen arbitration
procedures. See §3 (providing for a stay of litigation
pending arbitration "in accordance with the terms of the
agreement"); §4 (providing for "an order
directing that . . . arbitration proceed in the manner
provided for in such agreement"). Indeed, we have often
observed that the Arbitration Act requires courts
"rigorously" to "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." American Express Co.
v. Italian Colors Restaurant, 570 U.S. 228, 233 (2013)
(some emphasis added; citations, internal quotation marks,
and brackets omitted).
first blush, these emphatic directions would seem to resolve
any argument under the Arbitration Act. The parties before us
contracted for arbitration. They proceeded to specify the
rules that would govern their arbitrations, indicating their
intention to use individualized rather than class or
collective action procedures. And this much the Arbitration
Act seems to protect pretty absolutely. See AT&T
Mobility LLC v. Concepcion, 563 U.S. 333 (2011);
Italian Colors, supra; DIRECTV, Inc. v. Imburgia,
577 U.S. ___ (2015). You might wonder if the balance Congress
struck in 1925 between arbitration and litigation should be
revisited in light of more contemporary developments. You
might even ask if the Act was good policy when enacted. But
all the same you might find it difficult to see how to avoid
the statute's application.
the employees suggest the Arbitration Act's saving clause
creates an exception for cases like theirs. By its terms, the
saving clause allows courts to refuse to enforce arbitration
agreements "upon such grounds as exist at law or in
equity for the revocation of any contract." §2.
That provision applies here, the employees tell us, because
the NLRA renders their particular class and collective action
waivers illegal. In their view, illegality under the NLRA is
a "ground" that "exists at law ... for the
revocation" of their arbitration agreements, at least to
the extent those agreements prohibit class or collective
problem with this line of argument is fundamental. Put to the
side the question whether the saving clause was designed to
save not only state law defenses but also defenses allegedly
arising from federal statutes. See 834 F.3d, at 991-992, 997
(Ikuta, J., dissenting). Put to the side the question of what
it takes to qualify as a ground for "revocation" of
a contract. See Concepcion, supra, at 352-355
(THOMAS, J., concurring); post, at 1-2 (THOMAS, J.,
concurring). Put to the side for the moment, too, even the
question whether the NLRA actually renders class and
collective action waivers illegal. Assuming (but not
granting) the employees could satisfactorily answer all those
questions, the saving clause still can't save their
can't because the saving clause recognizes only defenses
that apply to "any" contract. In this way the
clause establishes a sort of "equal-treatment" rule
for arbitration contracts. Kindred Nursing Centers L. P.
v. Clark, 581 U.S. ___, ___ (2017) (slip op., at 4). The
clause "permits agreements to arbitrate to be
invalidated by 'generally applicable contract defenses,
such as fraud, duress, or unconscionability.'"
Concepcion, 563 U.S., at 339. At the same time, the
clause offers no refuge for "defenses that apply only to
arbitration or that derive their meaning from the fact that
an agreement to arbitrate is at issue." Ibid.
Under our precedent, this means the saving clause does not
save defenses that target arbitration either by name or by
more subtle methods, such as by "interfer[ing] with
fundamental attributes of arbitration." Id., at
344; see Kindred Nursing, supra, at ___(slip op., at
where the employees' argument stumbles. They don't
suggest that their arbitration agreements were extracted,
say, by an act of fraud or duress or in some other
unconscionable way that would render any contract
unenforceable. Instead, they object to their agreements
precisely because they require individualized arbitration
proceedings instead of class or collective ones. And by
attacking (only) the individualized nature of the arbitration
proceedings, the employees' argument seeks to interfere
with one of arbitration's fundamental attributes.
this much because of Concepcion. There this Court
faced a state law defense that prohibited as unconscionable
class action waivers in consumer contracts. The Court readily
acknowledged that the defense formally applied in both the
litigation and the arbitration context. 563 U.S., at 338,
341. But, the Court held, the defense failed to qualify for
protection under the saving clause because it interfered with
a fundamental attribute of arbitration all the same. It did
so by effectively permitting any party in arbitration to
demand classwide proceedings despite the traditionally
individualized and informal nature of arbitration. This
"fundamental" change to the traditional arbitration
process, the Court said, would "sacrific[e] the
principal advantage of arbitration-its informality-and mak[e]
the process slower, more costly, and more likely to generate
procedural morass than final judgment." Id., at
347, 348. Not least, Concepcion noted, arbitrators
would have to decide whether the named class representatives
are sufficiently representative and typical of the class;
what kind of notice, opportunity to be heard, and right to
opt out absent class members should enjoy; and how discovery
should be altered in light of the class-wide nature of the
proceedings. Ibid. All of which would take much time
and effort, and introduce new risks and costs for both sides.
Ibid. In the Court's judgment, the virtues
Congress originally saw in arbitration, its speed and
simplicity and inexpensiveness, would be shorn away and
arbitration would wind up looking like the litigation it was
meant to displace.
course, Concepcion has its limits. The Court
recognized that parties remain free to alter arbitration
procedures to suit their tastes, and in recent years some
parties have sometimes chosen to arbitrate on a classwide
basis. Id., at 351. But Concepcion s
essential insight remains: courts may not allow a contract
defense to reshape traditional individualized arbitration by
mandating classwide arbitration procedures without the
parties' consent. Id., at 344-351; see also
Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp.,
559 U.S. 662, 684-687 (2010). Just as judicial antagonism
toward arbitration before the Arbitration Act's enactment
"manifested itself in a great variety of devices and
formulas declaring arbitration against public policy, "
Concepcion teaches that we must be alert to new
devices and formulas that would achieve much the same result
today. 563 U.S., at 342 (internal quotation marks omitted).
And a rule seeking to declare individualized arbitration
proceedings off limits is, the Court held, just such a
employees' efforts to distinguish Concepcion
fall short. They note that their putative NLRA defense would
render an agreement "illegal" as a matter of
federal statutory law rather than "unconscionable"
as a matter of state common law. But we don't see how
that distinction makes any difference in light of
Concepion's rationale and rule. Illegality, like
unconscionability, may be a traditional, generally applicable
contract defense in many cases, including arbitration cases.
But an argument that a contract is unenforceable just
because it requires bilateral arbitration is a different
creature. A defense of that kind, Concepcion tells
us, is one that impermissibly disfavors arbitration whether
it sounds in illegality or unconscionability. The law of
precedent teaches that like cases should generally be treated
alike, and appropriate respect for that principle means the
Arbitration Act's saving clause can no more save the
defense at issue in these cases than it did the defense at
issue in Concepcion. At the end of our encounter
with the Arbitration Act, then, it appears just as it did at
the beginning: a congressional command requiring us to
enforce, not override, the terms of the arbitration
agreements before us.
that's not the end of it. Even if the Arbitration Act
normally requires us to enforce arbitration agreements like
theirs, the employees reply that the NLRA overrides that
guidance in these cases and commands us to hold their
agreements unlawful yet.
argument faces a stout uphill climb. When confronted with two
Acts of Congress allegedly touching on the same topic, this
Court is not at "liberty to pick and choose among
congressional enactments" and must instead strive
"'to give effect to both.'" Morton v.
Mancari, 417 U.S. 535, 551 (1974). A party seeking to
suggest that two statutes cannot be harmonized, and that one
displaces the other, bears the heavy burden of showing
"'a clearly expressed congressional
intention'" that such a result should follow.
Vimar Seguros y Reaseguros, S. A. v. M/V Sky Reefer,
515 U.S. 528, 533 (1995). The intention must be
"'clear and manifest.'" Morton,
supra, at 551. And in approaching a claimed conflict, we
come armed with the "stron[g] presum[ption]" that
repeals by implication are "disfavored" and that
"Congress will specifically address" preexisting
law when it wishes to suspend its normal operations in a
later statute. United States v. Fausto, 484 U.S.
439, 452, 453 (1988).
rules exist for good reasons. Respect for Congress as drafter
counsels against too easily finding irreconcilable conflicts
in its work. More than that, respect for the separation of
powers counsels restraint. Allowing judges to pick and choose
between statutes risks transforming them from expounders of
what the law is into policymakers choosing what the
law should be. Our rules aiming for harmony over
conflict in statutory interpretation grow from an
appreciation that it's the job of Congress by
legislation, not this Court by supposition, both to write the
laws and to repeal them.
to demonstrate an irreconcilable statutory conflict even in
light of these demanding standards, the employees point to
Section 7 of the NLRA. That provision guarantees workers
"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.
this language, the employees ask us to infer a clear and
manifest congressional command to displace the Arbitration
Act and outlaw agreements like theirs.
that much inference is more than this Court may make. Section
7 focuses on the right to organize unions and bargain
collectively. It may permit unions to bargain to prohibit
arbitration. Cf. 14 Penn Plaza LLC v. Pyett, 556
U.S. 247, 256-260 (2009). But it does not express approval or
disapproval of arbitration. It does not mention class or
collective action procedures. It does not even hint at a wish
to displace the Arbitration Act-let alone accomplish that
much clearly and manifestly, as our precedents demand.
should any of this come as a surprise. The notion that
Section 7 confers a right to class or collective actions
seems pretty unlikely when you recall that procedures like
that were hardly known when the NLRA was adopted in 1935.
Federal Rule of Civil Procedure 23 didn't create the
modern class action until 1966; class arbitration didn't
emerge until later still; and even the Fair Labor Standards
Act's collective action provision postdated Section 7 by
years. See Rule 23-Class Actions, 28 U.S.C. App., p. 1258
(1964 ed., Supp. II); 52 Stat. 1069; Conception, 563
U.S., at 349; see also Califano v. Yamasaki, 442
U.S. 682, 700-701 (1979) (noting that the "usual
rule" then was litigation "conducted by and on
behalf of individual named parties only"). And while
some forms of group litigation existed even in 1935, see 823
F.3d, at 1154, Section 7's failure to mention them only
reinforces that the statute doesn't speak to such
look at the employees' best evidence of a potential
conflict turns out to reveal no conflict at all. The
employees direct our attention to the term "other
concerted activities for the purpose of . . . other mutual
aid or protection." This catchall term, they say, can be
read to include class and collective legal actions. But the
term appears at the end of a detailed list of activities
speaking of "self-organization, " "form[ing],
join[ing], or assisting] labor organizations, " and
"bargaining] collectively." 29 U.S.C. §157.
And where, as here, a more general term follows more specific
terms in a list, the general term is usually understood to
"'embrace only objects similar in nature to those
objects enumerated by the preceding specific
words.'" Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 115 (2001) (discussing ejusdem
generis canon); National Assn. of Mfrs. v.
Department of Defense, 583 U.S. ___, ___(2018) (slip
op., at 10). All of which suggests that the term "other
concerted activities" should, like the terms that
precede it, serve to protect things employees "just
do" for themselves in the course of exercising their
right to free association in the workplace, rather than
"the highly regulated, courtroom-bound
'activities' of class and joint litigation."
Alternative Entertainment, 858 F.3d, at 414-415
(Sutton, J., concurring in part and dissenting in part)
(emphasis deleted). None of the preceding and more specific
terms speaks to the procedures judges or arbitrators must
apply in disputes that leave the workplace and enter the
courtroom or arbitral forum, and there is no textually sound
reason to suppose the final catchall term should bear such a
radically different object than all its predecessors.
NLRA's broader structure underscores the point. After
speaking of various "concerted activities" in
Section 7, Congress proceeded to establish a regulatory
regime applicable to each of them. The NLRA provides rules
for the recognition of exclusive bargaining representatives,
29 U.S.C. §159, explains employees' and
employers' obligation to bargain collectively, §
158(d), and conscribes certain labor organization practices,
§§ 158(a)(3), (b). The NLRA also touches on other
concerted activities closely related to organization and
collective bargaining, such as picketing, § 158(b)(7),
and strikes, §163. It even sets rules for adjudicatory
proceedings under the NLRA itself. §§160, 161. Many
of these provisions were part of the original NLRA in 1935,
see 49 Stat. 449, while others were added later. But missing
entirely from this careful regime is any hint about what
rules should govern the adjudication of class or collective
actions in court or arbitration. Without some comparably
specific guidance, it's not at all obvious what
procedures Section 7 might protect. Would opt-out class
action procedures suffice? Or would opt-in procedures be
necessary? What notice might be owed to absent class members?
What standards would govern class certification? Should the
same rules always apply or should they vary based on the