Murphy Oil USA, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 2014

361 N.L.R.B. 774 (N.L.R.B. 2014)

774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Murphy Oil USA, Inc. and Sheila M. Hobson. Case
10–CA–038804
October 28, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA,
HIROZAWA, JOHNSON, AND SCHIFFER
For almost 80 years, Federal labor law has protected
the right of employees to pursue their work-related legal
claims together, i.e., with one another, for the purpose of
improving their working conditions. The core objective
of the National Labor Relations Act is the protection of
workers’ ability to act in concert, in support of one an-
other. Section 7 of the Act implements that objective by
guaranteeing employees the “right . . . to engage in . . .
concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.”1 Our national
labor policy—aimed at averting “industrial strife and
unrest” and “restoring equality of bargaining power be-
tween employers and employees”2—has been built on
this basic premise. In protecting a substantive right to
engage in collective action—the basic premise of Federal
labor policy—the National Labor Relations Act is unique
among workplace statutes.3
The Section 7 right to act concertedly for mutual aid
and protection is not limited to supporting a labor union
and pursuing collective bargaining with employers. The
Supreme Court has made clear that Section 7 protects
employees “when they seek to improve working condi-
tions through resort to administrative and judicial fo-
rums. . . .”4 The Court stated that “Congress knew well
enough that labor’s cause is advanced on fronts other
than collective bargaining and grievance settlement with-
in the immediate employment context” and that failing to
protect such conduct “could ‘frustrate the policy of the
Act to protect the right of workers to act together to bet-
ter their working conditions.’”
Early in the Act’s history, the Court’s decisions estab-
lished that individual agreements between employees and
employer cannot restrict employees’ Section 7 rights.
The Court in 1940 struck down individual employment
1 29 U.S.C. § 157. Sec. 8(a)(1) of the Act, in turn, makes it an “un-
fair labor practice for an employer . . . to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in [S]ection
7.” 29 U.S.C. § 158(a)(1).
2 29 U.S.C. § 151.
3 See Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S.
728, 739 (1981) (“In contrast to the [NLRA], which was designed to
minimize industrial strife and to improve working conditions by en-
couraging employees to promote their interests collectively, the [Fair
Labor Standards Act] was designed to give specific minimum protec-
tions to individual workers…”) (emphasis in original).
4 Eastex, Inc. v. NLRB, 437 U.S. 556, 566 (1978) (fn. omitted).
contracts that required employees to present their dis-
charge grievances individually (foreclosing any role for a
union or other representative), describing the contracts as
a “continuing means of thwarting the policy of the Act.”5
The principle that individual agreements could not be
treated as waivers of the statutory right to act collectively
was soon reaffirmed, with the Court observing that
“[w]herever private contracts conflict with [the Board’s]
functions [of preventing unfair labor practices], they ob-
viously must yield or the Act would be reduced to a futil-
ity.”6 And even before the Act was passed, Congress
had declared in the Norris-LaGuardia Act that individual
agreements restricting employees’ “concerted activities
for the purpose of . . . mutual aid or protection”—
expressly including concerted legal activity—violated
federal policy and were unenforceable.7
In D. R. Horton, Inc., a case of first impression decid-
ed in 2012, the Board applied these well-established
principles to hold that an employer violates the National
Labor Relations Act “when it requires employees cov-
ered by the Act, as condition of their employment, to
sign an agreement that precludes them from filing joint,
class, or collective claims addressing their wages, hours,
or other working conditions against the employer in any
forum, arbitral or judicial.”8 The Board reached this
result relying on the substantive right, at the core of the
Act, to engage in collective action to improve working
conditions. It did so “notwithstanding the Federal Arbi-
tration Act (FAA), which generally makes employment-
related arbitration agreements judicially enforceable,”
finding no conflict, under the circumstances, between
Federal labor law and the FAA.9 “Arbitration [under the
FAA] is a matter of consent, not coercion,”10 and a valid
arbitration agreement may not require a party to prospec-
tively waive its “right to pursue statutory remedies.”11
But arbitration agreements that are imposed as a condi-
tion of employment, and that compel NLRA-covered
employees to pursue workplace claims against their em-
5 National Licorice Co. v. NLRB, 309 U.S. 350, 361 (1940).
6 J.I. Case Co. v. NLRB, 321 U.S. 332, 337 (1944).
7 29 U.S.C. §§ 102–104.
8 D. R. Horton, Inc., 357 NLRB 2277, 2277 (2012), enf. denied in
relevant part 737 F.3d 344 (5th Cir. 2013), petition for rehearing en
banc denied (5th Cir. No. 12-60031, April 16, 2014) .
9 Id.
10 Stolt-Nielsen, S.A. v. AnimalFeeds International Corp., 559 U.S.
662, 681 (2010), quoting Volt Information Sciences, Inc. v. Board of
Trustees of Leland Stanford Junior University, 489 U.S. 468, 479
(1989).
11 American Express Co. v. Italian Colors Restaurant, 133 S.Ct.
2304, 2310 (2013) (emphasis omitted), quoting Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 fn. 19
(1985). See also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,
26 (1991).
361 NLRB No. 72

MURPHY OIL USA, INC. 775
ployer individually, do require those employees to forfeit
their substantive right to act collectively—and so nullify
the foundational principle that has consistently informed
national labor policy as developed by the Board and the
courts. To be clear, the NLRA does not create a right to
class certification or the equivalent, but as the D. R. Hor-
ton Board explained, it does create a right to pursue
joint, class, or collective claims if and as available, with-
out the interference of an employer-imposed restraint.12
This case turns on the issue decided in D. R. Horton.
The Respondent urges us to overrule that decision, which
has been rejected by the U.S. Court of Appeals for the
Fifth Circuit13 and viewed as unpersuasive by decisions
of the Second and Eighth Circuits (although the analysis
by those courts was abbreviated).14 Scholarly support for
the Board’s approach, by contrast, has been strong.15 We
have independently reexamined D. R. Horton, carefully
12 357 NLRB 2277, 2286 & fn. 24.
13 D. R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013).
14 Sutherland v. Ernst & Young LLP, 726 F.3d 290, 297–298 fn. 8
(2d Cir. 2013); Owens v. Bristol Care, Inc., 702 F.3d 1050, 1053–1054
(8th Cir. 2013). In a Ninth Circuit decision, the court declined to ad-
dress an argument predicated on D. R. Horton as untimely raised, but
noted other courts’ disagreement with the Board’s decision. Richards
v. Ernst & Young, LLP, 744 F.3d 1072, 1975 & fn. 3 (9th Cir. 2013) (as
amended). Several Federal district court decisions have addressed D.
R. Horton, as well, most rejecting the Board’s view. We do not address
those adverse decisions individually here, but the arguments they re-
flect are examined. With very limited exceptions, the Board’s deci-
sions are reviewable solely in the Federal courts of appeals, and the
district courts accordingly play a limited role in the interpretation and
enforcement of the National Labor Relations Act. See 29 U.S.C. §
160(e). Finally, the California Supreme Court has endorsed the Fifth
Circuit’s position, albeit in a case involving an arbitration agreement
less restrictive than the one at issue in D. R. Horton. Iskanian v. CLS
Transportation Los Angeles, LLC, 327 P.3d 29, 137–143,173 Cal. Rptr.
3d 289, 299–305 (2014). State courts do not review the Board’s deci-
sions and play no role in the administration of the Act.
15 See, e.g., Catherine L. Fisk, Collective Action and Joinder of Par-
ties in Arbitration: Implications of D. R. Horton and Concepcion, 35
Berkeley J. Emp. & Labor L. 175 (2014); Charles A. Sullivan & Timo-
thy P. Glynn, Horton Hatches the Egg: Concerted Activity Includes
Concerted Dispute Resolution, 64 Ala. L. Rev. 1013 (2013); Katherine
V.W. Stone, Procedure, Substance, and Power: Collective Litigation
and Arbitration under the Labor Law, 61 U.C.L.A. L. Rev. Discourse
164 (2013); Stephanie Greene & Christine Neylon O’Brien, The NLRB
v. The Courts: Showdown over the Right to Collective Action in Work-
place Disputes, 52 Am. Bus. L. J. No. 4 (2014) (forthcoming) (availa-
ble at SSRN: http:/ssrn.com/abstract=2406577); Michael D. Schwartz,
Note, A Substantive Right to Class Proceedings: the False Conflict
between the FAA and NLRA, 81 Fordham L. Rev. 2945 (2013). See
also Ann C. Hodges, Can Compulsory Arbitration Be Reconciled with
Section 7 Rights?, 38 Wake Forest L. Rev. 173 (2003) (effectively
anticipating Board’s D. R. Horton decision). Professors Greene and
O’Brien observe that “[a]lthough most courts have chosen to discredit
the Board’s D. R. Horton decision, few have given serious considera-
tion to the merits of the Board’s analysis and the fact that the case
raises issues that have not been addressed by the Supreme Court.” Id.
at 32.
considering the Respondent’s arguments, adverse judicial
decisions, and the views of our dissenting colleagues.16
Today we reaffirm that decision. Its reasoning and its
result were correct, as we explain below,17 and no deci-
sion of the Supreme Court speaks directly to the issue we
consider here. “The substantive nature of the right to
group legal redress is what distinguishes the NLRA from
every other statute the Supreme Court has addressed in
its FAA jurisprudence,”18 and the Fifth Circuit itself
acknowledged the “force of the Board’s efforts to distin-
guish the NLRA from all other statutes that have been
found to give way to requirements of arbitration.”19
Having reaffirmed the D. R. Horton rationale, we ap-
ply it here to find that the Respondent has violated Sec-
tion 8(a)(1) of the Act by requiring its employees to
agree to resolve all employment-related claims through
individual arbitration, and by taking steps to enforce the
unlawful agreements in Federal district court when the
Charging Party and three other employees filed a collec-
tive claim against the Respondent under the Fair Labor
Standards Act.
16 The Respondent argues that D. R. Horton was not a valid decision
of the Board, asserting that the Board lacked a quorum because the
recess appointment of then-Member Becker was constitutionally inva-
lid and because Member Becker’s appointment had in any case expired
before the decision issued. We reject those arguments. Member Beck-
er’s appointment was constitutionally proper, see NLRB v. Noel Can-
ning, 134 S.Ct. 2550 (2014), and, for the reasons explained in Entergy
Mississippi, Inc., 358 NLRB 908, 908–909, (2012)—which we find
persuasive and endorse—his appointment had not expired. In any case,
the Respondent’s arguments (and other procedural attacks on D. R.
Horton) are now moot, given our independent reexamination of D. R.
Horton today. Putting aside any question of whether the Board can,
must, or should treat D. R. Horton as precedential, we agree with the
decision and subscribe to its reasoning.
17 The Board is not required to acquiesce in adverse decisions of the
Federal courts in subsequent proceedings not involving the same par-
ties. See, e.g., Enloe Medical Center v. NLRB, 433 F.3d 834, 838 (D.C.
Cir. 2005); Nielsen Lithographing Co. v. NLRB, 854 F.2d 1063, 1066–
1067 (7th Cir. 1988). As the Seventh Circuit explained, because only
the Supreme Court is authorized to interpret the Act with “binding
effect throughout the whole country,” the Board is “not obliged to
accept [the] interpretation” of any court of appeals. Nielsen Litho-
graphing, supra, 854 F.2d at 1066–1067. See generally Samuel Estrei-
cher & Richard L. Revesz, Nonaquiescence by Federal Administrative
Agencies, 98 Yale L. J. 679, 705–713 (1989).
18 Fisk, Collective Action and Joinder of Parties in Arbitration, su-
pra, 35 Berkeley J. Emp. & Labor L. at 186.
19 D. R. Horton, supra, 737 F.3d at 362.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 776
FINDINGS OF FACT20
I. JURISDICTION
The Respondent, a Delaware corporation, with a place
of business in Calera, Alabama, has been engaged in the
operation of retail gasoline and diesel fueling stations.
During the 12-month period prior to the Joint Motion and
Stipulation, the Respondent, in conducting its business,
purchased and received at its Calera, Alabama facility
goods valued in excess of $50,000 directly from points
outside the State of Alabama. The Respondent has been
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent operates over 1000 retail fueling sta-
tions in 21 States. Prior to March 6, 2012, the Respond-
ent required all job applicants and current employees, as
a condition of employment, to execute a “Binding Arbi-
tration Agreement and Waiver of Jury Trial” (the
Agreement). The Agreement provides in relevant part as
follows:

Excluding claims which must, by statute or other law,
be resolved in other forums, Company and Individual
agree to resolve any and all disputes or claims each
may have against the other which relate in any manner
whatsoever as to [sic] Individual’s employment, includ-
ing but not limited to, all claims beginning from the pe-
riod of application through cessation of employment at
Company and any post-termination claims and all re-
lated claims against managers, by binding arbitration
. . . . Disputes related to employment include, but are
not limited to, claims or charges based upon federal or
state statutes, including, but not limited to, the Age
Discrimination in Employment Act, Title VII of the
Civil Rights Act of 1964, as amended, and any other
civil rights statute, the Americans with Disabilities Act,
the Family and Medical Leave Act, the Fair Labor
Standards Act or other wage statutes, the WARN Act,
claims based upon tort or contract laws or common law
or any other federal or state or local law affecting em-
ployment in any manner whatsoever.
20 On November 29, 2012, the Respondent, the Charging Party, and
the General Counsel filed with the Board a joint stipulation of facts and
a motion to transfer this proceeding to the Board. The parties waived a
hearing before an administrative law judge and agreed to submit the
case directly to the Board for findings of fact, conclusions of law, and a
Decision and Order based on the stipulated record. On February 11,
2013, the Board approved the stipulation of facts and granted the mo-
tion. We reaffirm and ratify those actions now. Thereafter, the Re-
spondent, the Charging Party, and the General Counsel filed briefs.
. . . .
Individual understands that he/she will not be consid-
ered for employment by the Company unless he/she
signs this Agreement.
. . . .
By signing this Agreement, Individual and the Compa-
ny waive their right to commence, be a party to, or [act
as a] class member [in, any class] or collective action in
any court action against the other party relating to em-
ployment issues. Further, the parties waive their right
to commence or be a party to any group, class or col-
lective action claim in arbitration or any other forum.
The parties agree that any claim by or against Individu-
al or the Company shall be heard without consolidation
of such claim with any other person or entity’s claim.
. . . .
INDIVIDUAL AND COMPANY UNDERSTAND
THAT, ABSENT THIS AGREEMENT, THEY
WOULD HAVE THE RIGHT TO SUE EACH
OTHER IN COURT, TO INITIATE OR BE A
PARTY TO A GROUP OR CLASS ACTION
CLAIM, AND THE RIGHT TO A JURY TRIAL,
BUT, BY EXECUTING THIS AGREEMENT, BOTH
PARTIES GIVE UP THOSE RIGHTS AND AGREE
TO HAVE ALL EMPLOYMENT DISPUTES
BETWEEN THEM RESOLVED BY MANDATORY,
FINAL AND BINDING ARBITRATION. ANY
EMPLOYMENT RELATIONSHIP BETWEEN
INDIVIDUAL AND COMPANY IS TERMINABLE
AT-WILL, AND NO OTHER INFERENCE IS TO
BE DRAWN FROM THIS AGREEMENT.

The Respondent required the Charging Party, Sheila
M. Hobson, to sign the Agreement when she applied for
employment in November 2008. Hobson was employed
by the Respondent at its Calera, Alabama facility from
November 2008 to September 2010. In June 2010, Hob-
son and three other employees (the plaintiffs) filed, in the
United States District Court for the Northern District of
Alabama (the district court), a collective action pursuant
to 29 U.S.C. § 216(b) on behalf of themselves and other
employees similarly situated, alleging violations of the
Fair Labor Standards Act (FLSA). The complaint al-
leged that the Respondent failed to compensate the plain-
tiffs for overtime and for various required work-related
activities performed off the clock, including driving to
the fuel stations of the Respondent’s competitors to mon-
itor fuel prices and the accuracy of their signage.
In July 2010, the Respondent filed a motion to compel
the plaintiffs to arbitrate their claims on an individual
basis and to dismiss the FLSA collective action in its

MURPHY OIL USA, INC. 777
entirety, based on the plaintiffs having executed the
Agreement. The Respondent continued to seek to en-
force the Agreement in approximately eight separate
court pleadings and related filings made between Sep-
tember 2010 and February 2012.
Hobson filed an unfair labor practice charge in January
2011, and the General Counsel issued a complaint and
notice of hearing in March 2011. The complaint alleged
that the Respondent had been violating Section 8(a)(1) of
the Act by maintaining and enforcing a mandatory arbi-
tration agreement that prohibits employees from engag-
ing in protected, concerted activities. The complaint
further alleged that the Agreement violated Section
8(a)(1) because its language would lead employees rea-
sonably to believe that they were prohibited from filing
unfair labor practice charges with the Board. In April
2011, the Respondent filed an answer. Later that month,
the Regional Director issued an Order postponing the
hearing indefinitely.
On or around March 6, 2012, the Respondent revised
the Agreement. The Revised Agreement consists of the
initial Agreement with the following paragraph inserted
between the eighth and ninth paragraphs:

Notwithstanding the group, class or collective action
waiver set forth in the preceding paragraph, Individual
and Company agree that Individual is not waiving his
or her right under Section 7 of the National Labor Rela-
tions Act (“NLRA”) to file a group, class or collective
action in court and that Individual will not be disci-
plined or threatened with discipline for doing so. The
Company, however, may lawfully seek enforcement of
the group, class or collective action waiver in this
Agreement under the Federal Arbitration Act and seek
dismissal of any such class or collective claims. Both
parties further agree that nothing in this Agreement
precludes Individual or the Company from participat-
ing in proceedings to adjudicate unfair labor practices
charges before the National Labor Relations Board
(“NLRB”), including, but not limited to, charges ad-
dressing the enforcement of the group, class or collec-
tive action waiver set forth in the preceding paragraph.

The Respondent has maintained and enforced the Revised
Agreement, as a condition of employment, for employees
hired after March 6, 2012. Employees hired before that date
remain subject to the Agreement.
On September 18, 2012, the district court granted the
Respondent’s motion to compel individual arbitration of
the plaintiffs’ FLSA claims and further ordered that their
lawsuit be stayed pending arbitration. Hobson v. Murphy
Oil USA, Inc., No. CV-10-HGD-1486-S (N.D. Ala.
2012). The plaintiffs have not appealed this decision,
and the Respondent has refused to arbitrate the plaintiffs’
claims on a collective basis.
In October 2012, the General Counsel issued an
amended complaint that includes the same allegations as
the original complaint regarding the maintenance of the
Agreement and further alleges that the Respondent’s
efforts to enforce the Agreement in court also violated
Section 8(a)(1). The Respondent filed an answer to the
amended complaint.
B. The Parties’ Contentions
The General Counsel contends that the Agreement and
Revised Agreement violate Section 8(a)(1) because they
prohibit employees from exercising their Section 7 right
to litigate employment-related claims concertedly, and
that the Agreement is also unlawful because it would
lead employees reasonably to believe that they were pro-
hibited from filing unfair labor practice charges with the
Board. The General Counsel contends that the Respond-
ent further interfered with employees’ Section 7 rights by
applying the Agreements to restrict employees’ exercise
of Section 7 activity. Specifically, it sought to enforce
the Agreement against the plaintiffs through its motion to
dismiss their collective FLSA action and compel indi-
vidual arbitration of their claims. The General Counsel
argues that the Respondent’s motion and subsequent
court filings had an illegal objective and thus enjoy no
protection under the Petition Clause of the First Amend-
ment.
The Respondent argues that the Board should recon-
sider and overrule D. R. Horton, which it also contends is
procedurally invalid.21 The Respondent argues that, in
any case, its Agreement and Revised Agreement do not
restrict the exercise of the Section 7 right to engage in
collective legal activity under the Board’s statement in
D. R. Horton that “[s]o long as the employer leaves open
a judicial forum for class and collective claims, employ-
ees’ NLRA rights are preserved . . . .” 357 NLRB 2277,
2288. The Respondent contends that the Agreement and
Revised Agreement preserve employees’ NLRA rights,
as D. R. Horton requires, because they do not preclude
employees from filing complaints with Federal adminis-
trative agencies that have the power to file court actions
on behalf of a class of employees. The Respondent fur-
ther contends that because its motion to dismiss the
plaintiffs’ FLSA claim was successful, the motion obvi-
ously was not objectively baseless and thus was protect-
ed under the Petition Clause of the First Amendment and
cannot be held to constitute an unfair labor practice.22
21 See fn. 14. supra (rejecting procedural arguments).
22 The Respondent argues that the allegation in the amended com-
plaint that its motion to dismiss violated the Act is moot because the

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 778
The Charging Party contends that the Respondent vio-
lated Section 8(a)(1) by maintaining its arbitration
agreements because they bar joint or collective action in
any forum and that the Respondent’s motion to dismiss
the plaintiffs’ FLSA action constitutes a separate unfair
labor practice because seeking to enforce an unlawful
prohibition of collective action is as much a violation of
the Act as the maintenance of the prohibition itself.
C. Discussion
We begin our discussion with an examination of D. R.
Horton and the arguments raised against it. We explain
why, notwithstanding judicial criticism of the decision,
echoed by the dissents, we endorse that decision. Next,
applying the D. R. Horton rationale, we conclude that the
two arbitration agreements at issue here, original and
revised, violate Section 8(a)(1) of the Act as interpreted
in D. R. Horton, contrary to the Respondent’s assertions.
Finally, we conclude that the Respondent’s efforts to
enforce its unlawful agreements also violated Section
8(a)(1).
1. D. R. Horton was correctly decided
The rationale of D. R. Horton was straightforward,
clearly articulated, and well supported at every step:

(1) Mandatory arbitration agreements that bar
employees from bringing joint, class, or collective
workplace claims in any forum restrict the exercise
of the substantive right to act concertedly for mutual
aid or protection that is central to the National Labor
Relations Act. D. R. Horton, supra, 357 NLRB No.
184 [2277], slip op. at 2–3 & fn. 4 [2278–2279] (col-
lecting cases). Board and court decisions throughout
the Act’s history have recognized that right on facts
comparable to the present case. In 1942, for exam-
ple, the Board held that the filing of a Fair Labor
Standards Act suit by three employees was protected
concerted activity.23 In a later case, the Ninth Cir-
cuit agreed with the Board that an employee’s circu-
lation of a petition among coworkers, designating
him as their agent to seek back wages under the
only relief sought by the General Counsel in the amended complaint
was an order enjoining the Respondent from prosecuting the motion,
and no further prosecution is possible: the court has issued its order
granting the motion, and the plaintiffs did not appeal. We reject this
argument. The Board has broad discretionary authority under Sec.
10(c) to fashion appropriate remedies, see Indian Hills Care Center,
321 NLRB 144, 144 fn. 3 (1996), and our discretion is not limited by
the remedies the General Counsel seeks. Moreover, contrary to the
Respondent’s representations, the amended complaint does not limit the
remedies sought to injunctive relief; the General Counsel’s brief to the
Board seeks additional remedies.
23 Spandsco Oil & Royalty Co., 42 NLRB 942, 949–950 (1942).
FLSA, was protected concerted activity.24 In fact,
the Board’s position that litigation pursued concert-
edly by employees is protected by Section 7 has
been upheld consistently by the Federal appellate
courts,25 and the Supreme Court has explained that
the Act protects employees “when they seek to im-
prove working conditions through resort to adminis-
trative and judicial forums.”26 Such peaceful collec-
tive action, of course, is to be preferred to the forms
of economic disruption and industrial strife that Fed-
eral labor policy aims to prevent.
(2) Employer-imposed individual agreements
that purport to restrict employees’ Section 7 rights,
including agreements that require employees to pur-
sue claims against their employer individually, vio-
late the National Labor Relations Act, as the Board,
the courts of appeals, and the Supreme Court have
held. See 357 NLRB No. 184 [2277], slip op. at 4–5
& fn. 7 [2280–2281] (collecting cases). In an early
decision under the NLRA, the Seventh Circuit up-
held the Board’s finding unlawful a clause in indi-
vidual employment contracts that required employ-
ees to attempt to resolve disputes individually with
the employer and then provided for arbitration.27 In
National Licorice, supra, the Supreme Court found
unlawful individual employment contracts restricting
a discharged employee from presenting his griev-
ance to the employer “through a labor organization
or his chosen representatives, or in any way except
personally.”28 And in J. I. Case, supra, the Court
held that individual employment contacts predating
certification of a union could not limit the scope of
an employer’s statutory duty to bargain with the un-
ion.29 As these cases make clear, employers may not
condition employment on the waiver of employees’
right to take collective action by seeking class certi-
fication or the equivalent.30
24 Salt River Valley Water Users’ Assn. v. NLRB, 206 F.2d 325 (9th
Cir. 1953).
25 See, e.g., Brady v. National Football League, 644 F.3d 661, 673
(8th Cir. 2011); Mohave Electric Cooperative, Inc. v. NLRB, 206 F.3d
1183, 1188 (D.C. Cir. 2000).
26 Eastex, supra, 437 U.S. at 566.
27 NLRB v. Stone, 125 F.2d 752 (7th Cir. 1942).
28 309 U.S. at 360.
29 321 U.S. at 339.
30 In D. R. Horton, the Board was unequivocal that what Sec. 7 guar-
antees is the right to pursue class certification or the equivalent, not
class certification itself:
[T]here is no Section 7 right to class certification. . . . Whether a class
is certified depends on whether the requisites for class certification
under Rule 23 have been met. But that is not the issue in this case.
The issue here is whether the [employer] may lawfully condition em-
ployment on waiving their right under the NLRA to take the collective

MURPHY OIL USA, INC. 779
(3) Finding a mandatory arbitration agreement
unlawful under the National Labor Relations Act, in-
sofar as it precludes employees from bringing joint,
class, or collective workplace claims in any forum,
does not conflict with the Federal Arbitration Act or
undermine its policies, because:
(a) such a finding treats an arbitration agreement
no less favorably than any other private contract that
conflicts with federal law;
(b) the NLRA Section 7 right to pursue joint,
class, or collective legal action is a substantive right,
and not merely a procedural right of the sort found in
other statutes, and which arbitration agreements may
effectively waive under the FAA;
(c) not only does the text of the FAA fail to es-
tablish that an arbitration agreement inconsistent
with the NLRA is nevertheless enforceable, but the
savings clause in Section 2 of the FAA affirmatively
provides that such a conflict with federal law is
grounds for invalidating the agreement; and
(d) even if there were a direct conflict between
the NLRA and the FAA, the Norris-LaGuardia
Act—which by its terms prevents enforcement of
any private agreement inconsistent with the statutory
policy of protecting employees’ concerted activity,
including an agreement that seeks to prohibit a “law-
ful means [of] aiding any person participating or in-
terested in a” lawsuit arising out of a labor
pute31—indicates that the FAA would have to yield
insofar as necessary to accommodate Section 7
rights.

Id., at 2283–2288.
With due respect to the courts that have rejected D. R.
Horton, and to our dissenting colleagues, we adhere to its
essential rationale for protecting workers’ core substan-
tive right under the National Labor Relations Act, and we
now explain why. Our primary focus is properly on the
decision of the Fifth Circuit, the only Federal appellate
court to have examined D. R. Horton directly on review
and to have fully articulated its view that the Board
action inherent in seeking class certification, whether or not they are
ultimately successful under Rule 23.
. . . .Nothing in our holding guarantees class certification; it guarantees
only employees’ opportunity to pursue without employer coercion, re-
straint or interference such claims of a class or collective nature as
may be available to them under Federal, State or local law. Employ-
ees who seek class certification in Federal court will still be required
to prove that the requirements for certification under Rule 23 are met,
and their employer remains free to assert any and all arguments
against certification (other than the [arbitration agreement]).
D. R. Horton, supra, 357 NLRB 2277, 2286 & fn. 24.
31 29 U.S.C. § 104(d).
erred. We also address the separate views of our dissent-
ing colleagues, Member Johnson and Member Miscimar-
ra, who essentially endorse the Fifth Circuit’s decision.
a. The Fifth Circuit’s decision in D. R. Horton
We first summarize the decision of a divided panel of
the Fifth Circuit in D. R. Horton, then explain those as-
pects of the court’s reasoning that prevent us from agree-
ing with the panel majority.
(1)
Preliminarily, the Fifth Circuit majority acknowledged
that “cases under the NLRA give some support to the
Board’s analysis that collective and class claims, whether
in lawsuits or in arbitration, are protected by Section 7.”
But the court concluded that “[c]aselaw under the FAA
points . . . in a different direction than the course taken
by the Board”—despite conceding “that none of those
cases considered a Section 7 right to pursue legal claims
concertedly.” 737 F.3d at 357 & fn. 8. The court ob-
served that the “use of class action procedures [and pre-
sumably similar claims-aggregating devices] is not a
substantive right” even with regard to the NLRA, citing
decisions involving “various employment-related statuto-
ry frameworks”32 and dismissing the claim “that the
NLRA is essentially sui generis.” Id. at 357.
The court then examined the Board’s reasoning by ap-
plying a framework derived from the Supreme Court’s
FAA jurisprudence. The court’s starting premise was the
“requirement under the FAA that arbitration agreements
must be enforced according their terms,” subject to two
exceptions: (1) that an arbitration agreement may be in-
validated under the grounds recognized under the FAA’s
savings clause;33 and (2) that another statute’s “contrary
congressional command” may preclude application of the
FAA. Id. at 358. Neither exception applied, the court
concluded.
First, invoking the Supreme Court’s decision in Con-
cepcion,34 the court held that while the Board’s interpre-
tation of the FAA “savings clause” was “facially neutral
32 The primary authority cited by the Fifth Circuit was the Supreme
Court’s decision in Gilmer, supra, which involved the Age Discrimina-
tion in Employment Act. The D. R. Horton Board addressed Gilmer
and distinguished it from cases like this one. 357 NLRB 2277, 2285–
2286. In the present case, the issue is not whether access to class or
collective procedures is necessary to effectively vindicate rights under
the statute that authorized the underlying legal claims (the Fair Labor
Standards Act). The question, rather, is whether the mandatory arbitra-
tion agreements “violate[d] the substantive rights vested in employees
by Section 7 of the NLRA” to pursue their FLSA claims collectively.
Id. at 9 (emphasis added).
33 Sec. 2 of the FAA provides for revocation of an arbitration agree-
ment “upon such grounds as exist at law or in equity for the revocation
of any contract.” 9 U.S.C. § 2.
34 AT & T Mobility LLC v. Concepcion, 563 U.S. 333 (2011).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 780
[,] requiring only that employees have access to collec-
tive procedures in an arbitral or judicial forum,” it had
the impermissible effect of “disfavoring arbitration,”
because “[r]equiring a class mechanism [in some forum]
is an actual impediment to arbitration.” Id. at 359–360.
Second, the court concluded that the NLRA did not
“contain[ ] a congressional command to override the
FAA,” whether in its text or its legislative history or be-
cause of an “inherent conflict” between the FAA and
NLRA’s purpose. Id. at 360–361. Section 7 of the
NLRA was not such a command because it was merely
“general language” that did “not explicitly provide for a
collective [legal] action, much less the procedures such
an action would employ” and, indeed, did not even create
a private cause of action against employers. Id. at 360 &
fn. 9. In turn, there was no inherent conflict between the
FAA and the NLRA, because “courts repeatedly have
understood the NLRA to permit and require arbitration”
—here, the Fifth Circuit panel cited only decisions in-
volving collectively bargained arbitration provisions35—
and because the “right to collective action . . . cannot be
successfully defended on the policy ground [that] it pro-
vides employees with greater bargaining power,” in light
of decisions applying the FAA in cases involving en-
forcement of other Federal workplace statutes. Id. at
361.36 The court accorded “some importance” to the fact
that the NLRA was enacted and reenacted “prior to the
advent in 1966 of modern class action practice.” As for
the Board’s reliance on the Norris-LaGuardia Act, the
court—in a footnote observing that this statute is “out-
side the Board’s interpretive ambit” —summarily reject-
ed the “Board’s reasoning” as “unpersuasive.” Id. at 362
fn. 10.37
(2)
The Supreme Court has, in its own words, “empha-
sized often that the NLRB has the primary responsibility
for developing and applying national labor policy.”38
We begin, then, with those aspects of D. R. Horton that
turn on the understanding of national labor policy, which
35 The court relied primarily on the Supreme Court’s decision in 14
Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009).
36 The court’s principal authority was the Supreme Court’s decision
in Gilmer, supra.
37 Circuit Judge Graves dissented in relevant part, endorsing the
Board’s position in substantially all respects. 737 F.3d at 364 (dissent-
ing opinion). He agreed with the Board that the mandatory arbitration
agreement interfered with employees’ substantive rights under Sec. 7 of
the NLRA; that there was no conflict between the NLRA and the FAA,
given that statute’s savings clause; and that if there were a direct con-
flict between the NLRA and the FAA, the Norris-LaGuardia Act indi-
cated that the FAA would have to yield. Id. at 364–365.
38 NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786–787
(1990).
is built on the principle that workers may act collective-
ly—at work and in other forums, including the courts—
to improve their working conditions. The Fifth Circuit’s
decision gives too little weight to this policy. We reiter-
ate a crucial point made by the D. R. Horton Board: that
the Board, like the courts, must carefully accommodate
both the NLRA and the FAA. 357 NLRB 2277, 2284 &
fn. 19. The Fifth Circuit’s decision does not reflect such
an accommodation. It views the National Labor Rela-
tions Act and its policies much more narrowly than the
Supreme Court has, while treating the Federal Arbitra-
tion Act and its policies as sweeping far more broadly
than that statute or the Supreme Court’s decisions war-
rant. “[N]o legislation pursues it purposes at all costs,”39
and the FAA is no exception. The costs to Federal labor
policy imposed by the Fifth Circuit’s decision would be
very high. The substantive right at the core of the NLRA
would be severely compromised, effectively forcing
workers into economically disruptive forms of concerted
activity and threatening the sort of “industrial strife” that
Congress recognized as harmful. There is nothing in the
text of the FAA, in its policies, or in the Supreme Court’s
jurisprudence that compels those costs.
The Fifth Circuit understood D. R. Horton as simply
another in a series of cases to be decided under the estab-
lished framework of the Supreme Court’s Federal Arbi-
tration Act jurisprudence, and not as a case presenting
novel questions. The court’s first step was to determine
that the pursuit of legal claims concertedly is not a sub-
stantive right under Section 7 of the NLRA. We cannot
accept that conclusion; it violates the long-established
understanding of the Act and national labor policy, as
reflected, for example, in the Supreme Court’s decision
in Eastex, supra. Rather, we think the D. R. Horton
Board was clearly correct when it observed that the
“right to engage in collective action—including collec-
tive legal action—is the core substantive right protected
by the NLRA and is the foundation on which the Act and
Federal labor policy rest.” 357 NLRB 2277, 2287 (em-
phasis added in part).40
39 Italian Colors, supra, 133 S.Ct. at 2309, quoting Rodriguez v.
U.S., 480 U.S. 522, 525–526 (1987) (per curiam).
40 The source of the language of Sec. 7, as the Supreme Court has
explained, is the Norris-LaGuardia Act, and that statute expressly pro-
tects “[b]y all lawful means aiding any person participating or interest-
ed in any labor dispute who is . . . prosecuting, any action or suit in any
court of the United States or of any State.” 29 U.S.C. § 104. See
NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 834–835 (1984)
(upholding Board rule that individual employee’s assertion of right
under collective-bargaining agreement was protected concerted activi-
ty). After tracing the origins of Sec. 7, the City Disposal Court ob-
served that “[t]here is no indication that Congress intended to limit this
protection to situations in which an employee’s activity and that of his

MURPHY OIL USA, INC. 781
Section 7 provides that “[e]mployees shall have the
right . . . to engage in . . . concerted activities for the pur-
pose of . . . mutual aid or protection.” 29 U.S.C. § 157.
Under Section 8(a)(1) of the Act, it is an unfair labor
practice “for an employer . . . to interfere with, restrain,
or coerce employees in the exercise of the rights guaran-
teed in section 7.” 29 U.S.C. § 158(a)(1). Under the
NLRA’s statutory scheme, employees’ Section 7 rights
are enforced solely by the Board—there is no private
right of action under the Act—through the procedures
established by Section 10. 29 U.S.C. § 160. Notably,
Section 10(a) provides that the Board’s authority to pre-
vent and remedy unfair labor practices “shall not be af-
fected by any other means of adjustment or prevention
that has been or may be established by agreement, law,
or otherwise.” 29 U.S.C. § 160(a).
The rights uniquely guaranteed by Section 7 (with the
exception of the right to refrain from concerted activity)
are, as the Supreme Court has observed, “collective
rights,”41 and all of them are substantive rights. As the
D. R. Horton Board indicated, Section 7 protects a wide
range of concerted activity by employees who, like those
here, seek to compel their employer’s compliance with
the Fair Labor Standards Act. 357 NLRB 2277, 2279–
2280. Section 7 protects picketing. It protects a con-
sumer boycott. It protects a strike. And as numerous
Board and judicial decisions make quite clear, it protects,
as a substantive right, workers joining together to pursue
legal redress in a State or Federal court. There is no ba-
sis in the Act or its jurisprudence to carve out concerted
legal activity as somehow entitled to less protection than
other concerted activity. Indeed, concerted legal activity
would seem, if anything, to be a favored form of concert-
ed activity under the Act because it would have the least
potential for economic disruption, the harm that Con-
gress sought to prevent in enacting the NLRA, as Section
1 of the Act explains. 29 U.S.C. § 151. Blocking this
channel would only push employees toward other, more
disruptive forms of concerted activity. We doubt seri-
ously, meanwhile, that any court, would uphold—or
could uphold, consistent with either the NLRA or the
Norris-LaGuardia Act, with its longstanding prohibition
against “yellow dog” contacts—a mandatory, individual
arbitration agreement that compelled employees to give
up the right to strike or picket, to hold a march or rally,
to sign a petition, or to seek a consumer boycott, as a
fellow employees combine with another in any particular way.” Id. at
835.
41 Emporium Capwell Co. v. Western Addition Community Organi-
zation, 420 U.S. 50, 62 (1975) (emphasis added) (Sec. 7 rights “are, for
the most part, collective rights, rights to act in concert with one’s fellow
employees”).
means to resolve a dispute with their employer over
compliance with a federal statute. All of these forms of
concerted activity are protected by Section 7, as is con-
certed legal activity.
Section 7, then, does not create procedural rights in
the sense that the Fifth Circuit invoked. The collective
rights created by Section 7, by definition, necessarily
involve group action, and all are enforced one way: by
the Board, through its processes. This is in clear contrast
with statutes like the Fair Labor Standards Act or the
Age Discrimination in Employment Act, which establish
purely individual rights, create private rights of action,
and authorize group litigation only as a means to vindi-
cate individual rights. Enacted after the NLRA, these
statutes provide additional legal rights and remedies in
the workplace, but in no way supplant, or serve as a sub-
stitute for, workers’ basic right under Section 7 to engage
in concerted activity as a means to secure whatever
workplace rights the law provides them. In this case, for
example, while the underlying legal claims involved the
FLSA, it is the NLRA that is the source of the relevant,
substantive right to pursue those claims concertedly. In
short, contrary to the Fifth Circuit’s view, the National
Labor Relations Act is not simply another employment-
related Federal statute. “[I]t is protection for joint em-
ployee action that lies at the heart of the Act.”42 The
NLRA, then, is sui generis, and its special character must
be taken into account in cases like this one.
Because mandatory arbitration agreements like those
involved in D. R. Horton purport to extinguish a substan-
tive right to engage in concerted activity under the
NLRA, they are invalid. The Supreme Court has ex-
plained recently that the Federal policy favoring arbitra-
tion, however liberal, does have limits. It does not per-
mit a “prospective waiver of a party’s right to pursue
statutory remedies,” such as a “provision in an arbitration
agreement forbidding the assertion of certain statutory
rights.”43 Insofar as an arbitration agreement prevents
employees from exercising their Section 7 right to pursue
legal claims concertedly—by, as here, precluding them
from filing joint, class, or collective claims addressing
their working conditions in any forum, arbitral or judi-
cial—the arbitration agreement amounts to a prospective
waiver of a right guaranteed by the NLRA. (The Act, of
course, does not create an entitlement to class certifica-
tion or the equivalent; it protects the right to seek that
result.) Being required to proceed individually is no
42 Meyers Industries, 281 NLRB 882, 883 (1986) (Meyers II), affd.
sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied
487 U.S. 1205 (1988).
43 Italian Colors, supra, 133 S.Ct. at 2310, quoting Mitsubishi, supra,
473 U.S. at 637 (emphasis in original).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 782
proper substitute for proceeding together, insofar as oth-
erwise legally permitted,44 and only channels employee
collective activity into disruptive forms of action. The
“remedial and deterrent function”45 of the NLRA, which
protects the right to concerted legal action, cannot possi-
bly be served by an exclusive arbitral forum that denies
the right of employees to proceed collectively.
But even applying the framework utilized by the Fifth
Circuit, D. R. Horton was correctly decided. The court
stated that the FAA requires that arbitration agreements
must be enforced according to their terms, with two ex-
ceptions. Both exceptions apply here. First, the manda-
tory arbitration agreement is invalid under Section 2 of
the FAA, the statute’s savings clause, which provides for
revocation “upon such grounds as exist at law or in equi-
ty for the revocation of any contract.” 9 U.S.C. § 2. The
Supreme Court’s decisions in National Licorice and J.I.
Case, supra, establish that any individual employment
contract that purports to extinguish rights guaranteed by
Section 7 of the National Labor Relations Act is unlaw-
ful. If such contracts were allowed to stand, then (in the
Supreme Court’s words) the Act “would be reduced to a
futility.”46 “It is . . . well established,” the Supreme
Court explained later, “that a federal court has a duty to
determine whether a contract violates federal law before
enforcing it”—holding that illegality under the NLRA is
a valid defense.47 In rejecting the Board’s position in D.
R. Horton, the Fifth Circuit failed even to cite National
Licorice or J.I. Case, much less attempt to reconcile
them with the result reached by the court.
Instead, the Fifth Circuit relied on the Supreme Court’s
decision in Concepcion, which held that the FAA
preempted a California State law doctrine finding class-
action waivers in consumer contracts unconscionable.
There the court stated that requiring the availability of
class procedures “interfere[d] with the fundamental at-
tributes of arbitration,” and was an impermissible obsta-
cle to the pro-arbitration objectives of the FAA.48 Cases
like D. R. Horton, however, present no issue of Federal
preemption. Rather, they require accommodating two
Federal statutory schemes: the NLRA and the FAA. The
D. R. Horton Board explained, with care, why in the con-
text of cases like this one, the NLRA and the FAA are
44 As explained, the NLRA forecloses employers from imposing on
employees a waiver of the right to seek to pursue their legal claims
together. It does not prevent employers from opposing class certifica-
tion or the equivalent of grounds other than waiver. See D. R. Horton,
supra, 357 NLRB 2277, 2286 & fn. 24.
45 Gilmer, supra, 500 U.S. at 28, quoting Mitsubishi, supra, 473 U.S.
at 637.
46 J.I. Case, supra, 321 U.S. at 337.
47 Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 83–84 (1982).
48 Concepcion, supra, 131 S.Ct. at 1748.
“capable of co-existence.”49 The Fifth Circuit, in con-
trast, did not explain how upholding the mandatory arbi-
tration agreement could be reconciled with the NLRA.
Nor did the court explain why, in the event of a conflict
between the NLRA and the FAA, it would be the NLRA
that would be required to yield. The Federal “courts are
not at liberty to pick and choose among congressional
enactments.”50
Assuming, again, that the Fifth Circuit’s analytical
framework was appropriate, the D. R. Horton Board was
correct that the second exception to application of the
FAA was implicated here, because Section 7 of the
NLRA amounts to a “contrary congressional com-
mand”51 overriding the FAA. We see no compelling
basis for the court’s conclusion that to override the FAA,
Section 7 was required to explicitly provide for a private
cause of action for employees, a right to file a collective
legal action, and the procedures to be employed. That
standard, as already suggested, reflects a fundamental
misunderstanding of the NLRA and the collective, sub-
stantive rights it creates for the Board to enforce. The
right to engage in concerted legal activity is plainly au-
thorized by the broad language of Section 7, as it has
been authoritatively construed by the Supreme Court in
Eastex, supra, as part of the protected “resort to adminis-
trative and judicial forums.”52 And Section 10(a) of the
Act, as pointed out, provides that the Board’s authority
“shall not be affected by any other means of adjustment
or prevention that has been or may be established by
agreement, law, or otherwise.” An arbitration agreement
like the one here, even if it did not run afoul of the
FAA’s savings clause, would seem to be precisely the
sort of “means of adjustment . . . established by agree-
ment” that cannot affect the Board’s enforcement of Sec-
tion 7. However, the Fifth Circuit’s treatment of the
agreement produces that precise result.53 Under the
court’s view, because (and only because) the employer’s
restriction on protected concerted activity is embodied in
an arbitration agreement, it is lawful and cannot be inval-
idated by the Board. To be sure, the NLRA does not
explicitly override the FAA—but for an obvious reason:
neither when the NLRA was enacted in 1935, nor when
it was reenacted in 1947, had the FAA ever been applied
in connection with individual employment contracts.
The issue of the FAA’s applicability, in fact, was not
resolved until much later, when the Supreme Court read
49 Morton v. Mancari, 417 U.S. 535, 551 (1974).
50 Id.
51 CompuCredit Corp. v. Greenwood, 565 U.S. 95 (2012).
52 437 U.S. at 566.
53 Cf. CompuCredit, supra, 132 S.Ct. at 672 (examining statutory
provisions specifically addressing predispute arbitration).

MURPHY OIL USA, INC. 783
the exemption in Section 1 of the FAA (which excludes
from coverage “contracts of employment of seamen, rail-
road employees, or any other class of workers engaged in
foreign or interstate commerce”) to refer only to trans-
portation workers.54
Nor are we persuaded by the Fifth Circuit’s view that
there is no inherent conflict between the NLRA and the
FAA. That the courts have understood the NLRA to
permit collectively bargained arbitration provisions is
irrelevant to the proper treatment of employer-imposed
mandatory individual arbitration agreements. Section 1
of the NLRA explicitly declares that the “policy of the
United States” is to “encourage[e] the practice and pro-
cedure of collective bargaining.” 29 U.S.C. § 151. That
policy is explicitly based on the Congressional finding
that:

The inequality of bargaining power between employees
who do not possess full freedom of association or actu-
al liberty of contract and employers who are organized
in the corporate or other forms of ownership associa-
tion substantially burdens and affects the flow of com-
merce. . . .

Id. Section 7 of the NLRA, the Supreme Court has ex-
plained, embodies the effort of Congress to remedy this
problem.55 An individual arbitration agreement, imposed
by employers on their employees as a condition of employ-
ment and restricting their rights under the NLRA, is the
antithesis of an arbitration agreement providing for union
representation in arbitration that was reached through the
statutory process of collective bargaining between a freely
chosen bargaining representative and an employer that has
complied with the statutory duty to bargain in good faith.
The Fifth Circuit, in our view, failed to come to terms with
the unique provisions and policies of the NLRA.
Also troubling was the Fifth Circuit’s treatment of the
Norris-LaGuardia Act. As explained, that statute provid-
ed the source for the language of Section 7 of the
NLRA.56 The Board’s decision in D. R. Horton is
grounded in NLRA, Section 7, but it was entirely appro-
priate for the Board to look to the Norris-LaGuardia Act
both in identifying Federal labor policy and in seeking an
accommodation between Federal labor policy and the
Federal policy favoring arbitration. That the Board may
54 Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) (constru-
ing 9 U.S.C. § 1).
55 City Disposal, supra, 465 U.S. at 835 (“[I]t is evident that, in en-
acting §7 of the NLRA, Congress sought generally to equalize the
bargaining power of the employee with that of his employer by allow-
ing employees to band together in confronting an employer regarding
the terms and conditions of their employment.”).
56 See id; Eastex, supra, 437 U.S. at 564 fn. 14.
not be entitled to judicial deference in interpreting the
Norris-LaGuardia Act cannot mean that the Board’s stat-
utory interpretation is somehow illegitimate or necessari-
ly incorrect. The court, for its part, did not explain why
the Norris-LaGuardia Act—enacted in 1932, 7 years af-
ter enactment of the FAA—has no bearing on a case like
this one, given that the statute’s explicit language

(1) declares that the “public policy of the United
States” is to insure that the “individual unorganized
worker” is “free from the interference, restraint, or
coercion of employers . . . in . . . concerted activities
for the purpose of . . . mutual aid or protection;”57
(2) specifies that protected activities include
“[b]y all lawful means aiding any person participat-
ing or interested in any labor dispute who . . . is
prosecuting, any action or suit in any court of the
United States or any state;”58
(3) provides that “[a]ny undertaking or promise
. . . in conflict with the public policy declared [in the
Act] is declared to be contrary to the public policy of
the United States [and] shall not be enforceable in
any court of the United States;”59 and
(4) repeals “[a]ll acts and parts of acts in conflict
with” its provisions.60

It is hardly self-evident that the FAA—to the extent that it
would compel Federal courts to enforce mandatory individ-
ual arbitration agreements prohibiting concerted legal activi-
ty by employees—survived the enactment of the Norris-
LaGuardia Act and its sweeping prohibition of “yellow
dog” contracts. “[T]he [Norris-LaGuardia Act’s] language
seemingly requires a textualist to find that it trumps the
FAA where the two conflict.”61
For all of these reasons, we are not persuaded by the
Fifth Circuit’s view that the D. R. Horton Board erred.
We turn next to the decisions of two other Federal appel-
late courts, which have also rejected D. R. Horton, but
provided much less comprehensive rationales for doing
so.
b. The decisions of the Eighth and Second Circuits
rejecting D. R. Horton
Among the reasons given by the Fifth Circuit for not
adopting the Board’s view was a reluctance “to create a
circuit split,” citing decisions from three other circuits.
737 F.3d at 362. Those decisions, however, add little to
the equation here, given their limited analysis of the is-
57 Norris-LaGuardia Act, Sec. 2, 29 U.S.C. § 102.
58 Norris-LaGuardia Act, Sec. 4, 29 U.S.C. § 104.
59 Norris-LaGuardia Act, Sec. 3, 29 U.S.C. § 103.
60 Norris-LaGuardia Act, Sec. 15, 29 U.S.C. § 115.
61 Sullivan & Glynn, Horton Hatches the Egg, supra, 64 Ala. L. Rev.
at 1039.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 784
sue. Nothing in the two other court of appeals decisions
that reject D. R. Horton persuades us here.
To begin, the Fifth Circuit court cited, as having re-
jected D. R. Horton, a Ninth Circuit decision that was
later amended so that it specifically refrained from decid-
ing the issue.62 A cited Second Circuit decision, in turn,
addressed D. R. Horton only in a footnote that offered
virtually no analysis of the issue beyond endorsing the
decision of the Eighth Circuit in Owen v. Bristol Care,
supra.63 We now turn to that decision.
In Owen v. Bristol Care, the court reversed a district
court’s denial of a motion to compel arbitration in a suit
asserting FLSA claims and seeking class action certifica-
tion. The court rejected an argument that the legislative
history of the NLRA “indicated a congressional com-
mand to override the FAA.” 702 F.3d at 1053. The
Board’s decisions, by contrast, are predicated on the text
of the NLRA and longstanding constructions of the Act
by the Board and the Supreme Court, not on legislative
history.
Without referring to the Board’s analysis in D. R. Hor-
ton, the Eighth Circuit also rejected the employees’ ar-
gument based on the Norris-LaGuardia Act, observing
that the 1947 “decision to reenact the FAA suggests that
Congress intended its arbitration protections to remain
intact even in light of the earlier passage of three major
labor relations statutes.” 702 F.3d at 1053. With respect,
that conclusion is untenable. 64 First enacted in 1925, 43
Stat. 883—before passage of the Norris-LaGuardia Act
(1932) and the National Labor Relations Act (1935)—the
FAA was reenacted and codified in 1947 as Title 9 of the
United States Code. But that action had no substantive
effect. “Under established canons of statutory construc-
tion, ‘it will not be inferred that Congress, in revising and
consolidating the laws, intended to change their effect
unless such intention is clearly expressed.’”65 There is
no such clearly expressed Congressional intention either
in the statute codifying the FAA, see 61 Stat. 669, or in
its legislative history, nor did the Eighth Circuit point to
one. It seems inconceivable that legislation effectively
restricting the scope of the Norris-LaGuardia Act and the
62 See Richards, supra, 744 F.3d at 1075 & fn. 3 (amended decision).
The Fifth Circuit cited the original Ninth Circuit decision, reported at
734 F.3d 871.
63 Sutherland, supra, 726 F.3d at 297 fn. 8.
64 For an exhaustive critique of the Eighth Circuit’s view, see Sulli-
van & Glynn, Horton Hatches the Egg, supra, 64 Ala. L. Rev. at 1046–
1051. Professors Sullivan and Glynn advisedly describe the theory that
the FAA is the later enacted law as “nonsensical.” Id. at 1020.
65 Finley v. U.S., 490 U.S. 545, 554 (1989), quoting Anderson v. Pa-
cific Coast S.S. Co., 225 U.S. 187, 199 (1912). See also Bulova Watch
Co. v. U.S., 365 U.S. 753, 758 (1961) (rejecting argument that particu-
lar statute was later enactment where its predecessor provision “had
long been on the books”).
NLRA could be enacted without debate or even notice,
especially in 1947, when those labor laws were both rela-
tively new and undeniably prominent.
As for D. R. Horton itself, the Eighth Circuit stated
that the decision “carries little persuasive authority in the
circumstances presented.” 702 F.3d at 1053. The court
rejected the holding of D. R. Horton because it “owe[d]
no deference to [the Board’s] reasoning.” 702 F.3d at
1054. That bare rationale cannot be sufficient. First, to
the extent that the issue cannot be properly decided with-
out weighing the National Labor Relations Act and its
policies, the Board is demonstrably entitled to some def-
erence, as the primary interpreter of Federal labor law.
Second, the Board’s understanding of Federal law out-
side the NLRA may in fact be correct, regardless of
whether deference is claimed by the Board or owed by
the courts. The issue of deference, in other words, is not
the ultimate one.
The Eighth Circuit’s Owen decision thus adds little by
way of legal analysis to the decision of the Fifth Circuit,
and the Second Circuit’s unelaborated endorsement of
the Eighth Circuit’s view adds even less.
c. Member Johnson’s dissent
The separate dissents of our colleagues, Member John-
son and Member Miscimarra level many and varied criti-
cisms at D. R. Horton, the most substantial of which we
have already addressed in responding to the decisions of
the Fifth and Eighth Circuits. We therefore confine our-
selves to the novel points made by our colleagues. They
leave us unpersuaded.
We address Member Johnson’s dissent first. For
Member Johnson, the Board’s overriding concern should
be to avoid, at all costs, a conflict with the Federal courts
and instead to acknowledge the extraordinary strength of
the Federal policy favoring arbitration, reflected (in our
colleague’s view) in a long string of Supreme Court de-
cisions. That path of least resistance, however, amounts
both to abdicating the Board’s responsibility to adminis-
ter the National Labor Relations Act as Congress intend-
ed—by permitting Section 7 to be effectively nullified—
and to adopting a view of the Federal Arbitration Act that
goes far beyond anything the Supreme Court has held.66
As two scholars recently stated, the “expansion of the
FAA cannot continue indefinitely,” because “[a]t some
point, the irresistible force of that statute must meet the
66 To quote one scholar, “[n]one of the Court’s class-action waiver
jurisprudence under the FAA addresses a case in which the fundamen-
tal statutory protection is the right of employees to act as a group in
improving their working conditions; all of them addressed situations in
which the underlying right was an individual right to be free from un-
fair market behavior.” Fisk, Collective Actions and Joinder of Parties
in Arbitration, supra, 35 Berkeley J. Emp. & Lab. L. 175, 186.

MURPHY OIL USA, INC. 785
immovable object of federal labor law.”67 Nor can we
accept the strong implication in Member Johnson’s dis-
sent that concerted legal activity to protect employees’
rights, at least when it takes the form of a class action, is
somehow illegitimate because it may result in significant
legal liability for employers.68 Our analysis surely must
presume that employees will join together (in some cas-
es, if not all) to pursue claims against their employers
that are well grounded in Federal or State laws protecting
American workers and that they will properly seek to use
existing legal rules that authorize joint, collective, or
class actions. That concerted legal activity may be a
successful means of vindicating employees’ legal rights
cannot be a legitimate reason to disfavor it.69
(1)
Member Johnson’s position here rests, in important
part, on the remarkable premise that employees’ concert-
ed legal activity deserves very little, if any, protection
under Section 7 of the NLRA. Such an argument has
virtually no support in the text of Section 7, in Board
doctrine, in the decisions of the Federal appellate courts
(including the decisions that reject D. R. Horton), or in
Supreme Court jurisprudence.
To begin, we reject the suggestion that filing joint,
class, or collective claims is rarely, if ever, protected by
Section 7. By its terms, Section 7 protects employee
activity that is “concerted” and engaged in “for the pur-
pose of . . . mutual aid or protection.” 29 U.S.C. § 157.
Under the Board’s well-established test, concerted activi-
ty includes cases “where individual employees seek to
initiate or to induce or to prepare for group action, as
well as individual employees bringing truly group com-
plaints to the attention of management.”70 The Supreme
Court has observed, however, that “[t]here is no indica-
tion that Congress intended to limit [Section 7] protec-
67 Sullivan & Glynn, Horton Hatches the Egg, supra, 64 Ala. L. Rev.
at 1020.
68 It seems plausible, at least, that the “notion of collective power is
precisely what underlies Section 7,” but that “[t]his power is the source
of much resistance to class actions and the efforts to use arbitration to
eliminate class actions.” Hodges, supra, Can Compulsory Arbitration
Be Reconciled with Section 7 Rights?, supra, 38 Wake Forest L. Rev. at
216 (footnotes omitted).
69 Member Johnson says that we “totally misapprehend the interest
at issue here.” To the contrary, we understand Member Johnson’s
position that the abuse of class actions and similar procedural mecha-
nisms threatens to impose large and unwarranted liability on employers.
If his position were correct, then it would be for Congress, the State
legislatures, and the courts to address those abuses directly, not for the
Board to distort Federal labor law and policy in an effort to provide an
alternative solution.
70 Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II), affd.
sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied
487 U.S. 1205 (1988).
tion to situations in which an employee’s activity and
that of his fellow employees combine with one another in
any particular way.”71 The requirement of “mutual aid
or protection,” in turn, is satisfied when, in the words of
the Supreme Court, employees “seek to improve terms
and conditions of employment or otherwise improve
their lot as employees through channels outside the im-
mediate employee-employer relationship,” such as “re-
sort to administrative and judicial forums.”72
Entirely consistent with these principles, the Board in
Salt River Valley, more than 60 years ago, had no diffi-
culty finding that an individual employee had engaged in
protected concerted activity when he circulated a petition
among coworkers seeking designation as their agent to
pursue Fair Labor Standards Act claims against their
employer.73 Rejecting the employer’s argument, the
Board observed that “[g]roup action is not deemed a pre-
requisite to concerted activity for the reason that a single
person’s action may be the preliminary step to acting in
concert.”74 The Board also rejected the assertion that the
employee’s activity “was not for ‘mutual aid or protec-
tion,’” “because the statutory rights under the Fair Labor
Standards Act are individual rights not increased by joint
action”; the “end effect” of the employee’s activity, the
Board pointed out, might well be a successful lawsuit for
backpay benefitting other employees.75 The Board’s
decision was affirmed in its entirety by the Ninth Circuit.
Much of Member Johnson’s criticism is focused on the
D. R. Horton Board’s statement that “an individual [em-
ployee] who files a class or collective action regarding
wages, hours, or working conditions, whether in court or
before an arbitrator, seeks to initiate or induce group ac-
tion and is engaged in conduct protected by Section 7.”
357 NLRB 2277, 2279 (emphasis added). Today’s case,
of course, involves an FLSA collective action filed by
three employees. This would seem to fit even Member
Johnson’s restrictive view of concerted activity, which
(to quote the Supreme Court’s decision in City Disposal)
would limit the concept to cases “in which two or more
employees are working together at the same time and the
same place toward a common goal.”76 The City Disposal
Court rejected such a “narrow meaning” of concert, up-
holding the Board’s position that an individual employee
who singly asserts his right under a collective-bargaining
agreement is engaged in concerted activity. Indeed, the
71 NLRB v. City Disposal Systems, Inc., supra, 465 U.S. at 835.
72 Eastex, supra, 437 U.S. at 565.
73 Salt River Valley Water Users Assn., 99 NLRB 849 (1952), enfd.
206 F.2d 325 (9th Cir. 1953). The D. R. Horton Board correctly relied
on this decision. 357 NLRB 2277, 2278.
74 Id. at 853.
75 Id. at 853–854.
76 City Disposal, supra, 465 U.S. at 831.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 786
filing of a class or collective action by an individual em-
ployee is analogous to the individual conduct at issue in
City Disposal. By definition, such an action is predicat-
ed on a statute that grants rights to the employee’s
coworkers, and it seeks to make the employee the repre-
sentative of his colleagues for the purpose of asserting
their claims, in addition to his own. Plainly, the filing of
the action contemplates—and may well lead to—active
or effective group participation by employees in the suit,
whether by opting in, by not opting out, or by otherwise
permitting the individual employee to serve as a repre-
sentative of his coworkers. It is this potential “to initiate
or to induce or to prepare for group action,” in the phrase
of Meyers II, supra—collectively seeking legal redress—
that satisfies the concert requirement of Section 7. There
is no sound reason, then, to hold that only face-to-face
activity preparatory to filing a suit can be protected by
Section 7.77
In any case, Member Johnson also neglects the
Board’s approach to the concert requirement in situations
like that posed in D. R. Horton, which involved only a
facial challenge to a mandatory arbitration agreement,
i.e., the unfair labor practice alleged was the mere
maintenance of the agreement as a term and condition of
employment. Consistent with Board precedent, the D. R.
Horton Board properly treated the arbitration agreement
as a workplace rule restricting Section 7 activity. 357
NLRB 2277, 2280 at 4.78 The vice of maintaining such a
rule is that it reasonably tends to chill employees in the
77 To the extent that Member Johnson argues that his own, narrow
view of concerted activity is mandated by the Act, we disagree. “City
Disposal makes unmistakably clear that . . . neither the language nor
the history of [S]ection 7 requires that the term ‘concerted activities’
be interpreted to protect only the most narrowly defined forms of com-
mon action by employees, and that the Board has substantial responsi-
bility to determine the scope of protection in order to promote the pur-
poses of the NLRA.” Prill v. NLRB, 755 F.2d 941, 952 (D.C. Cir.
1985). Member Johnson misunderstands our discussion of City Dis-
posal when he insists that we somehow seek “to resurrect the Alleluia
Cushion theory of implied concertedness.” That case involved an indi-
vidual employee who—without the involvement of any other employ-
ee—filed an individual complaint with the California Occupational
Safety and Health Administration. There was “no evidence that [the
employee] purported to represent the other employees” or that he made
any “efforts . . . to seek his fellow employees’ aid in pursuing the com-
plaints.” Alleluia Cushion Co., 221 NLRB 999, 1000 (1975). The
Alleluia Cushion Board did not view the complaint as an attempt to
induce group action, nor did it consider whether the administrative
process contemplated participation by multiple employees. Instead,
citing public policy, the Board found the employee’s activity concerted
because he invoked a statute that was intended to benefit his coworkers,
whose consent to his actions was presumed. Id. Neither D. R. Horton
nor our decision today relies on this rationale.
78 See U-Haul Co. of California, 347 NLRB 375, 377 (2006), enfd.
255 Fed. Appx. 527 (D.C. Cir. 2007) (employer policy unlawful be-
cause reasonably interpreted to require resort to arbitration and to pre-
clude filing of Board charges).
exercise of their statutory rights. As a result, the rule
may be unlawful even if there is no showing that a cov-
ered employee ever engaged in the protected concerted
activity prohibited by the rule, precisely because the rule
itself discourages employees from doing so.79
Member Johnson asserts that “a particular litigation
mechanism is, at most, a peripheral concern to the Act,
especially where the mechanism is established and de-
fined by statutes different than the Act, to handle claims
under different statutes than the Act,” because the Act is
intended to remedy the inequality of bargaining power
between employees and employers and litigation in-
volves adjudication, not bargaining. Here, too, Member
Johnson’s narrow position is fundamentally mistaken.
We are dealing with litigation that seeks to change em-
ployees’ terms and conditions of employment. In an
unorganized workplace, those terms and conditions—
including, for example, both wages and mandatory arbi-
tration agreements—are established unilaterally by the
employer. The employer’s imposition of a mandatory
arbitration agreement requiring employees to bring all
workplace claims individually—and forbidding them
access to any group procedure—reflects and perpetuates
precisely the inequality of bargaining power that the Act
was intended to redress. Precluding employees from
joining together to press their workplace claims strips
them of the collective, equalizing power that Section 7
envisions. Of course, as a practical matter, litigation
routinely does involve not only adjudication by a court or
arbitrator, but also bargaining between the parties: that is
how cases settle, as most of them do.
There is no merit, in turn, to Member Johnson’s claim
that “D. R. Horton attempts to transform Section 7 into a
‘procedural superhalo’ that authorizes class and collec-
tive litigation even where Congress and the courts do
not.” On this point, D. R. Horton could not have been
clearer, taking care to explain that “there is no Section 7
right to class certification” and that the Board’s holding
does not “guarantee[ ] class certification, . . . [but] only
employees’ opportunity to pursue without employer co-
ercion, restraint or interference such claims of a class or
collective nature as may be available to them under Fed-
eral, State or local law.” 357 NLRB 2277, 2286 & fn 24.
What D. R. Horton prohibits is unilateral action, by an
79 See World Color (USA) Corp., 360 NLRB 789, 790 (2014) (“[A]n
employer may violate Section 8(a)(1) even where an employee has not
engaged in protected concerted activity—if, for example, the employer
maintains a rule that reasonably would be interpreted by employees as
prohibiting Section 7 activity. . . .”), citing Lutheran Heritage Village-
Livonia, 343 NLRB 646, 646–647 (2004). See also Lafayette Park
Hotel, 326 NLRB 824, 825 (1998) (mere maintenance of work rule by
employer will violate Act where rule likely to have chilling effect),
enfd. 203 F.3d 52 (D.C. Cir. 1999).

MURPHY OIL USA, INC. 787
employer, that purports to completely deny employees
access to class, collective, or group procedures that are
otherwise available to them under statute or rule. The
Board did not (and, of course, could not) require a court
or arbitrator to certify a class in a particular case, to per-
mit a collective action to go forward, or to allow joinder.
Nor did the Board require Congress or the States to cre-
ate or maintain any type of group procedure at all.
Member Johnson claims to find support for his views
in the assertion that “there was no such thing as a class or
collective action in any modern sense when the [NLRA]
was passed in 1935.” But the suggestion that Section 7
covers only those types (or subtypes) of protected con-
certed activity that existed in 1935 is untenable. The
language of Section 7 is general and broad; there is no
indication in the statutory text, in the legislative history,
or in the Supreme Court’s decisions that the 1935 Con-
gress intended to fix, for all time, the ways in which em-
ployees would be able to engage in protected efforts to
improve their working conditions. To take one obvious
example, the use of modern communication technologies
such as social media to pursue unionization is obviously
protected, regardless of whether workers during the De-
pression had access to Facebook. But more to the point,
concerted legal activity by employees was hardly un-
known in 1935. It was specifically protected by Section
4(d) of the Norris-LaGuardia Act. And while it is true
that the collective-action provision of the Fair Labor
Standards Act was not adopted until 1938, that device,
insofar as it permitted one employee to assert claims on
behalf of similarly-situated employees, was hardly an
extraordinary innovation—one scholar, indeed, describes
it as “traditional.”80 Group litigation was not invented in
1938 or in 1966; it has long been part of the Anglo-
American legal tradition, reflected (for example) in the
Federal Equity Rules even before the Federal Rules of
Civil Procedure were first adopted.81 “Long before crys-
tallization of the national labor policy . . . [in the Norris-
LaGuardia Act and the NLRA], employees had resorted
to lawsuits to vindicate their rights against employers,
although those rights were considerably narrower than
they are today.”82
Finally, we cannot agree with Member Johnson’s ar-
gument that in assessing mandatory arbitration provi-
80 Elizabeth K. Spahn, Resurrecting the Spurious Class: Opting-In to
the Age Discrimination in Employment Act and the Equal Pay Act
through the Fair Labor Standards Act, 71 Georgetown L. J. 119, 124
(1982).
81 See G.W. Foster, Jr. Jurisdiction, Rights, and Remedies for Group
Wrongs under the Fair Labor Standards Act: Special Federal Ques-
tions, 1975 Wis. L. Rev. 295, 323 & fn. 100 (1975).
82 Sullivan & Glynn, Horton Hatches the Egg, supra, 64 Ala. L. Rev.
at 1015–1016 & fn. 5–8 (collecting cases).
sions like the one involved in D. R. Horton, the Board
not only must engage in a balancing test, but must con-
clude that an employer’s supposedly legitimate interest
in completely preventing employees from seeking to
pursue their legal claims against the employer jointly, in
any judicial or arbitral forum, actually outweighs em-
ployees’ Section 7 rights. To state the argument is to
refute it. Here, again, Member Johnson distorts D. R.
Horton, which properly acknowledged the obvious: that
employees have no Section 7 right to class certification
and, in turn, that employers may lawfully oppose class
certification on any legally available ground other than
an unlawful waiver in a mandatory arbitration agreement.
Id. at 2286 fn. 24. That holding, of course, reflects a
proper balancing of the respective rights of employees
and employers. It is untenable to claim, as Member
Johnson does, that prohibiting employees from pursuing
their workplace claims collectively results only in “rela-
tively slight” interference with Section 7 rights, when it
actually extinguishes them.
Just as mistaken are Member Johnson’s arguments that
attempt to equate the situation in D. R. Horton, where an
employer has imposed arbitration agreements on individ-
ual employees who lack union representation, with a
situation in which a labor union has exercised its statuto-
ry authority to permit the individual presentation of
grievances to the employer or has agreed in collective
bargaining to an arbitration provision covering employ-
ees’ statutory claims. Neither Section 9(a) of the Act83 or
the Supreme Court’s decision in 14 Penn Plaza, supra,
has any bearing here. To posit that they do is to say that
union representation makes no difference in the work-
place—the antithesis of the NLRA. That an employer
may collectively bargain a particular grievance-and-
arbitration procedure with a union is not to say that it
may unilaterally impose any dispute-resolution proce-
dure it wishes on unrepresented employees, including a
procedure that vitiates Section 7 rights, simply because it
takes the form of an agreement.
83 Sec. 9(a), which grants properly chosen unions exclusive status as
the representative of bargaining unit employees, also contains a proviso
permitting individual employees to “present grievances to their em-
ployer and have such grievances adjusted, without the intervention” of
the union “as long as the adjustment is not inconsistent with the terms”
of an existing collective-bargaining agreement. 29 U.S.C. § 159(a).
The language of Sec. 9(a) demonstrates that “Congress clearly indicat-
ed an intent to ensure that the institutional role of the collective-
bargaining representative of all the employees in a bargaining unit is
not subordinated to that of individual employees.” Postal Service, 281
NLRB 1015, 1016 (1986). Member Miscimarra’s dissent relies heavi-
ly, but mistakenly, on Sec. 9(a), and we address his arguments (which
Member Johnson joins) below.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 788
In National Licorice and J.I. Case,84 supra, the Su-
preme Court long ago made clear that individual agree-
ments between employers and employees may not extin-
guish rights under the Act. Member Johnson’s attempt to
distinguish these cases is unavailing. In his view, both
decisions are essentially limited to their facts, prohibiting
individual agreements restricting Section 7 rights only
where employees had designated a union as their collec-
tive-bargaining representative or a union had been certi-
fied. There is no sound basis for reading the two deci-
sions so narrowly. The implicit premise of such a read-
ing is that Section 7 protects only the right to engage in
collective bargaining, but the statutory text proves oth-
erwise—as the Supreme Court in Eastex, supra, ob-
served, pointing out that Congress chose “to protect con-
certed activities for the somewhat broader purpose of
‘mutual aid or protection’ as well as for the narrower
purposes of ‘self-organization’ and ‘collective bargain-
ing.’”85
(2)
In addition to disputing the D. R. Horton Board’s anal-
ysis of Section 7, Member Johnson rejects its accommo-
dation of the NLRA and the Federal Arbitration Act.
How those two statutes must be accommodated, of
course, depends on how each is interpreted. We have
explained why Member Johnson’s interpretation of the
NLRA is seriously mistaken, and so his view of the
proper accommodation required here is also flawed. In
addressing the Fifth Circuit’s decision in D. R. Horton,
we have addressed most of the points made by Member
Johnson with respect to the FAA and the Supreme
Court’s jurisprudence under that statute. Our dissenting
colleague points to no Supreme Court decision that di-
rectly answers the question posed in D. R. Horton. Nor
does he point to any language in either the text of the
FAA or its legislative history that even hints that Con-
gress could have envisioned the result Member Johnson
would reach here.
For reasons already offered, we disagree with Member
Johnson’s view that (1) the FAA’s savings clause does
not apply, even though both the NLRA and the Norris-
84 Member Johnson implies that the D. R. Horton Board deliberately
omitted language from the Court’s J. I. Case decision because it under-
cut the Board’s analysis there. In fact, the language has no such effect.
The Court observed that an employee was free to make “any contract
provided that it is not inconsistent with a collective agreement or does
not amount to or result from or is not part of an unfair labor practice.”
321 U.S. at 339 (emphasis added). The arbitration agreement in D. R.
Horton, of course, amounted to an unfair labor practice. Nor, in any
case, could it fairly be said to have been made by the employee in the
sense contemplated by the Court, when it was unilaterally imposed by
the employer as a term and condition of employment.
85 Eastex, supra, 437 U.S. at 565.
LaGuardia Act provide grounds for revoking any private
agreement that is inconsistent with those statutes; and (2)
neither the NLRA nor the Norris-LaGuardia Act amounts
to a “contrary Congressional command” invalidating
arbitration agreements like the one at issue in D. R. Hor-
ton. It is certainly true that the Supreme Court’s deci-
sions have construed Section 2 of the FAA to exclude
particular judicially created grounds for revocation—
State law unconscionability doctrine in Concepcion and
the “effective vindication” principle applied by some
Federal judges in Italian Colors. But here we deal not
with State statutes or judge-made rules, but with the core
provisions and policies of two Federal labor-law statutes.
Unless the FAA is treated as a super “super statute,” this
distinction matters.86
Nor can we agree with Member Johnson that the prin-
ciple that an arbitration agreement is invalid if it divests a
party of substantive rights refers exclusively to rights
“arising under the statute that gave rise to the claim” —
here (in his view) the FLSA, but not the NLRA, even
though the necessary and intended effect of the mandato-
ry arbitration agreement is to defeat the exercise of Sec-
tion 7 rights.87 Member Johnson views the Section 7
right to engage in concerted legal activity as exceptional-
ly narrow, but a long line of cases proves him wrong.
Member Johnson also errs in rejecting our view that
Section 10(a) of the Act—which provides that a “means
of adjustment . . . established by agreement” cannot af-
fect the Board’s authority—presents an obstacle to the
enforcement of mandatory arbitration agreements. In
arguing that Section 10(a) has no application to such
agreements, because it lacks the specificity “necessary to
override the FAA” and creates “no substantive right,”
86 See William N. Eskridge & John Ferejohn, Super-Statutes, 50
Duke L. J. 1215 (2001). The two scholars define a “super-statute” as a
“law or series of laws that (1) seeks to establish a new normative or
institutional framework for state policy and (2) over time does ‘stick’ in
the public culture such that (3) the super-statute and its institutional or
normative principles have a broad effect on the law—including an
effect beyond the four corners of the statute.” Id. at 1216. They go on
to identify the Norris-LaGuardia Act, the NLRA, and the FAA all as
“super statutes” (see id. at 1227, 1260) and observe that when “super
statutes” are in conflict, the Supreme Court “will trim back the super-
statute whose policy and principle would be relatively less impaired by
nonapplication.” Id. at 1260. To us, it seems clear that in a case like
D. R. Horton, it is the FAA that would be “relatively less impaired by
nonapplication.”
87 Member Johnson insists that the Supreme Court’s decision in Ital-
ian Colors, supra, demonstrates that the NLRA Sec. 7 right to pursue
legal claims concertedly cannot be a substantive right, because the
Supreme Court has upheld a class-arbitration waiver in the context of
Federal antitrust law. But Federal antitrust law has no provision com-
parable to Sec. 7. Indeed, to restate the obvious, none of the Supreme
Court decisions on which Member Johnson relies addresses, even indi-
rectly, the issue posed here.

MURPHY OIL USA, INC. 789
Member Johnson misses the point. It is Section 7 that
creates the relevant substantive right here, and Section
10(a) that demonstrates the intent of Congress not to
permit private agreements to supersede the protections of
the Act. Inasmuch as no individual agreement between
an employer and an employee can restrict Section 7
rights—the teaching of the Supreme Court’s decisions in
National Licorice and J. I. Case, supra—our dissenting
colleague’s demand for specificity is misplaced.
Finally, Member Johnson’s effort to explain why the
Norris-LaGuardia Act has no bearing here falls far short.
Member Johnson acknowledges the language of that
statute, at once sweeping and detailed, but he fails to
come to terms with it. To cite cases involving collective-
ly-bargained arbitration provisions, as Member Johnson
does,88 is to miss the crucial point, for reasons we have
stated. And, given the language of the Norris-LaGuardia
Act—which not only protects concerted activity general-
ly, but takes care to identify a wide range of specific ex-
amples in Section 4—it is demonstrably wrong to assert
that the “true focus” of the statute was limited to “strike
activity.” Section 13 of the statute, notably, defines “la-
bor dispute” very broadly, to include “any controversy
concerning terms and conditions of employment.” 29
U.S.C. § 113. Nor is this a case where the language of
the Norris-LaGuardia Act must be accommodated to the
more specific provisions of another Federal labor law.89
Member Johnson, in turn, is mistaken when he argues
that the language of the Norris-LaGuardia Act itself
demonstrates its inapplicability here. As we have ex-
plained, that statute makes unenforceable “any undertak-
ing or promise . . . in conflict with the public policy de-
clared” in the Act.”90 That policy is defined as insuring
that the “individual unorganized worker” is “free from
the interference, restraint, or coercion of employers . . . in
concerted activities for the purpose of . . . mutual aid or
protection.”91 And among the activities specifically pro-
tected is “[b]y all lawful means aiding any person partic-
ipating or interested in any labor dispute who . . . is pros-
88 Member Johnson quotes a 1956 First Circuit decision stating that
an “agreement to arbitrate is not one of those contracts to which the
Norris-LaGuardia Act applies.” Electrical Workers Local 25 v. Gen-
eral Electric Co., 233 F.2d 85, 90 (1st Cir. 1956). But that case in-
volved a union’s effort to compel an employer to arbitrate disputes in
accordance with a collective-bargaining agreement. The decision says
nothing about mandatory individual arbitration agreements, imposed on
workers as a condition of employment, prohibiting concerted legal
activity of the sort that the Norris-LaGuardia Act expressly protected.
89 See Pittsburgh & Lake Erie Railroad Co. v. Railway Labor Execu-
tives Assn., 491 U.S. 490 , 513–514 (1989) (Norris-LaGuardia Act not
required to yield to Interstate Commerce Act, distinguishing cases
involving Railway Labor Act and NLRA).
90 29 U.S.C. § 103 (emphasis added).
91 29 U.S.C. § 102.
ecuting, any action or suit in any court.”92 In the face of
this language—and ignoring Section 15 of the Norris-
LaGuardia Act, which repeals all conflicting statutes93—
Member Johnson asserts that employees who disregard a
mandatory arbitration agreement to pursue concerted
legal activity are not, in fact, using “lawful means” to aid
persons prosecuting a lawsuit—because they have some-
how “violated” the FAA. This assertion obviously begs
the question here. If the arbitration agreement violates
the policy of the Norris-LaGuardia Act (as we have
demonstrated), then it is unenforceable, and employees
have no legal duty to comply with it. To the extent that
the FAA would suggest otherwise, it would conflict with
the Norris-LaGuardia Act—and so cannot survive under
Section 15 of that statute.
d. Member Miscimarra’s dissent
In dissent, Member Miscimarra specifically endorses
Member Johnson’s view that the FAA precludes the rule
of D. R. Horton, invalidating arbitration agreements that
are imposed on employees as a condition of employment
and that compel them to pursue their claims against their
employer individually. We confine our response, then,
to other points raised by Member Miscimarra, none of
which persuade us that D. R. Horton was incorrectly de-
cided.
We begin by reiterating an essential point made by the
D. R. Horton Board and already repeated here: the
NLRA does not create a right to class certification or the
equivalent; rather, it creates a right to pursue joint, class,
or collective claims if and as available, without the inter-
ference of an employer-imposed restraint. There should
be no doubt on this score, but Member Miscimarra’s dis-
sent might inadvertently cause confusion for some read-
ers. Contrary to any suggestion in the dissent, we make
no “assumption that Congress, in the NLRA, vested au-
thority in the Board to guarantee that . . . claims [will] be
afforded ‘class’ treatment in litigation.” We do not
“suggest that Congress, in 1935, incorporated into the
NLRA a guarantee that non-NLRA claims will be af-
forded ‘class’ treatment.” We do not hold that “Section
7 guarantee[s] class-type procedures relating to claims
brought under non-NLRA statutes.” This case, like D. R.
Horton, is not about guaranteeing class treatment. It is
about the legality of mandatory waivers of employees’
right to seek class treatment or the equivalent for their
workplace claims (where that potential exists as a matter
of law) in any forum, judicial or arbitral. Such employ-
er-imposed restraints, as we have shown here, violate the
Act because they purport to preclude all forms of group
92 29 U.S.C. § 104.
93 29 U.S.C. § 115.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 790
litigation or arbitration, regardless of whether they would
otherwise be available to employees. Our dissenting
colleague’s exposition of the many forms of group litiga-
tion that exist under American law is beside the point.
Nothing in D. R. Horton purports to affect those mecha-
nisms in any way. The Board’s concern is entirely with
employer-imposed restraints that would preclude em-
ployees from seeking to use such mechanisms. To hold
such restraints unlawful is hardly to create a “regulatory
scheme” (in the dissent’s words).
Member Miscimarra mistakenly argues that the provi-
so to Section 9(a) of the Act presents an obstacle to the
holding of D. R. Horton. According to our colleague,
“Section 9(a) of the Act explicitly protects the right of
every employee as an ‘individual’ to ‘present’ and to
‘adjust’ grievances ‘at any time.’” D. R. Horton, the
argument continues, interferes with this “right,” by pre-
venting an individual employee from agreeing with his
employer to resolve his workplace claim on an individual
basis. Of course, the premise of the argument—that
employees have agreed to pursue their claims individual-
ly—is false. Here, as in D. R. Horton, mandatory arbi-
tration agreements were imposed on employees as a con-
dition of employment by their employer. In any case, the
language of Section 9(a), viewed and understood in con-
text, and the teachings of the Supreme Court refute our
colleague’s position.
We start with the statutory text. Section 9(a), in its en-
tirety, reads:

Representatives designated or selected for the purposes
of collective bargaining by the majority of the employ-
ees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such
unit for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, or other
conditions of employment: Provided, That any individ-
ual employee or a group of employees shall have the
right at any time to present grievances to their employ-
er and to have such grievances adjusted, without the
intervention of the bargaining representative, as long as
the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in ef-
fect: Provided further, That the bargaining representa-
tive has been given [the] opportunity to be present at
such adjustment.

29 U.S.C. § 159(a) (emphasis added in part). This is the
provision of the Act that makes a duly recognized or certi-
fied union the exclusive representative of all employees in
the bargaining unit. The language upon which Member
Miscimarra relies comes from a proviso to this provision
that permits represented employees to present grievances
directly to their employer.
By its clear terms, neither Section 9(a) nor the proviso
relied on by Member Miscimarra has any bearing on any
issue at stake in D. R. Horton. We are not concerned
here with the exclusive-representative status of a labor
union or the ability of individual employees to “present
grievances to their employer and to have such grievances
adjusted” notwithstanding their union’s exclusive bar-
gaining right. As the Supreme Court explained in Empo-
rium Capwell, supra, the “intendment of the proviso is to
permit employees to present grievances and to authorize
the employer to entertain them without opening itself to
liability for dealing directly with employees in deroga-
tion of the duty to bargain only with the exclusive bar-
gaining representative, a violation of [Section] 8(a)(5)”
of the Act.94 Only in this very limited respect does the
proviso create a “right”; indeed, the Emporium Capwell
Court pointed out that the NLRA “nowhere protects this
‘right’ by making it an unfair labor practice for an em-
ployer to refuse to entertain such a presentation.”95
Moreover, the “right” is limited further because it exists
largely at the sufferance of the union, which may negate
it through a collective-bargaining agreement.
But even accepting Member Miscimarra’s argument at
face value, it proves too much. The hypothetical “right”
of the 9(a) proviso is granted not only to “any individual
employee,” but also, expressly, to a “group of employ-
ees.” The proviso, then, can hardly be said to protect an
employer who, as here, seeks to preclude a “group of
employees” from presenting and pursuing their grievanc-
es together. The Supreme Court, meanwhile, has made
clear as a general matter that the 9(a) proviso is not a
shield for employers who seek to circumvent other re-
quirements of the Act, holding that the proviso does not
94 420 U.S. at 61 (emphasis added). Sec. 8(a)(5) of the Act makes it
an unfair labor practice for an employer “to refuse to bargain collec-
tively with the representatives of his employees, subject to the provi-
sions of section 9(a).” 29 U.S.C. § 158(a)(5). The issue in Emporium
Capwell was whether the employer had lawfully discharged a group of
union-represented, minority employees who had sought to bargain
separately with their employer over alleged racially discriminatory
practices. The Court held that Sec. 7 did not protect the employees’
effort.
95 Id. The Court went on to endorse a Second Circuit decision that
“fully explicated the matter.” Id., citing Black-Clawson Co. v. Machin-
ists Lodge 355, 313 F.2d 179 (2d Cir. 1962). There, the Second Circuit
held that Sec. 9(a) did not entitle an individual employee to compel his
employer to arbitrate a grievance. “Despite Congress’ use of the word
‘right,’” the court observed, “which seems to import an indefeasible
right mirrored in a duty on the part of the employer, . . . the proviso was
designed merely to confer upon the employee the privilege to approach
his employer on personal grievances. . . .” 313 F.2d at 185. The Sec.
9(a) proviso did not create a substantive right, the court explained, but
rather carved out an exception to the rule of union exclusivity. Id.

MURPHY OIL USA, INC. 791
permit an employer to deal with a company-dominated
employee committee in contravention of Section 8(a)(2)
of the Act.96
Finally, we reject our colleague’s related suggestion
that the Section 7 “right to refrain” from protected con-
certed activity is implicated here. In prohibiting employ-
ers from requiring employees to pursue their workplace
claims individually, D. R. Horton does not compel em-
ployees to pursue their claims concertedly.
In sum, we have carefully considered, and fully ad-
dressed, the views of both the Federal appellate courts
that have rejected D. R. Horton and the views of our dis-
senting colleagues. We have no illusions that our deci-
sion today will be the last word on the subject, but we
believe that D. R. Horton was correctly decided, and we
adhere to it.
2. The Respondent’s Arbitration Agreements violate
Section 8(a)(1)
Having reaffirmed the rationale and holding of D. R.
Horton, we turn to the facts of this case, which is easily
disposed of. Both the original and the revised arbitration
agreements here are unlawful under D. R. Horton.
We find that the Agreement violates Section 8(a)(1)
because it explicitly prohibits employees from concerted-
ly pursuing employment-related claims in any forum. By
virtue of the Agreement, the Respondent conditions em-
ployment on a waiver of employees’ right “to com-
mence, be a party to, or act as a class member in, any
class or collective action in any court action . . . relating
to employment issues,” and “to commence or be a party
to any group, class or collective action claim in arbitra-
tion or any other forum.” The Agreement limits the reso-
lution of all employment-related disputes to binding in-
dividual arbitration, and provides that any claim “shall be
heard without consolidation of such claim with any other
person or entity’s claim.” The Agreement thus clearly
and expressly bars employees from exercising their Sec-
tion 7 right to pursue collective litigation of employment-
related claims in all forums.
The Respondent argues that the Agreement conforms
to D. R. Horton by virtue of its exclusion of “claims
which must, by statute or other law, be resolved in other
forums.” According to the Respondent, this exclusion
provides an avenue for employees to file administrative
claims with Federal agencies that have the power to seek
relief on a classwide basis. Thus, the Respondent posits,
the Agreement satisfies the Board’s requirement in D. R.
Horton that employers “leave[] open a judicial forum for
class and collective claims” so that “employees’ NLRA
96 NLRB v. Cabot Carbon Co., 360 U.S. 203, 214–218 (1959).
rights are preserved.” 357 NLRB 2277, 2288. We reject
this contention.
First, the provision excluding claims that must be re-
solved in other forums appears in and modifies the sec-
tion of the Agreement dealing with choice of forum—
i.e., the selection of an arbitral forum and the waiver of
the right to a judicial forum. It does not, by its terms,
modify the separate provisions waiving the right to liti-
gate concertedly—i.e., “to commence, be a party to, or
act as a class member in, any class or collective action in
any court action against the other party relating to em-
ployment issues”; to “commence or be a party to any
group, class or collective action claim in arbitration or
any other forum”; or to consolidate one’s “claim with
any other person or entity’s claim.” Even assuming the
Agreement could be read to allow administrative agen-
cies to seek classwide relief in court on the basis of a
claim filed by an employee, it still prohibits employees
from “be[ing] . . . part[ies] to” or “act[ing] as . . . class
member[s] in” such a case. Indeed, one could argue that
the Agreement prohibits individual employees from fil-
ing administrative claims to begin with, since such a
claim could be construed as having “commence[d]” a
class action in the event that the agency decides to seek
classwide relief. And the Agreement certainly prohibits
two or more employees from filing a joint claim in “any
. . . forum,” including an administrative agency.
Second, this provision exempts from mandatory indi-
vidual arbitration only those claims that “must, by statute
or other law, be resolved” in forums other than arbitra-
tion (emphasis added). The Respondent provides no
examples of such claims, and absent any examples, we
are unconvinced that this exemption has any content
whatsoever. The Supreme Court has made it abundantly
clear that claims arising under a variety of laws, includ-
ing Federal employment laws, may be resolved in an
arbitral forum.97 Even unfair labor practice claims,
which must be filed in an administrative forum, may be
resolved in an arbitral forum. See Collyer Insulated
Wire, 192 NLRB 837 (1971) (prearbitral deferral); Unit-
ed Technologies Corp., 268 NLRB 557 (1984) (same);
Spielberg Mfg. Co., 112 NLRB 1080 (1955) (post-
arbitral deferral); Olin Corp., 268 NLRB 573 (1984)
(same).98 Moreover, the Agreement strongly suggests
97 See Gilmer, supra, 500 U.S. at 26 (“It is by now clear that statuto-
ry claims may be the subject of an arbitration agreement, enforceable
pursuant to the FAA.”).
98 Because the exemption for claims that must be “resolved” in an-
other forum does not encompass unfair labor practice claims, and be-
cause nothing else in the Agreement excludes such claims from the
scope of the provisions mandating arbitration of all claims, the Agree-
ment also violates Sec. 8(a)(1) because employees reasonably would

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 792
that claims under the Age Discrimination in Employment
Act, Title VII of the Civil Rights Act of 1964, the Amer-
icans with Disabilities Act, the Family and Medical
Leave Act, the Fair Labor Standards Act, and the WARN
Act are not so exempted, inasmuch as they are specifical-
ly listed as examples of claims that are subject to manda-
tory arbitration. Whatever claims this provision may
exempt, if any, it does not countermand the plain mean-
ing of the Agreement’s broad mandatory arbitration and
concerted-litigation waiver provisions.
The Revised Agreement also unlawfully interferes
with the exercise of Section 7 rights.99 While it states
that employees do not waive their Section 7 right “to file
a group, class or collective action in court” and will not
be disciplined or threatened with discipline if they do so,
the Revised Agreement leaves intact the entirety of the
original Agreement, under which employees explicitly
waive their right “to commence, be a party to, or [act as
a] class member [in, any class] or collective action,” and
“to commence or be a party to any group, class or collec-
tive action claim in arbitration or any other forum.” And
the Revised Agreement goes on to state that the Re-
spondent may “seek enforcement of the group, class or
collective action waiver . . . and seek dismissal of any
such class or collective claims.” This additional lan-
guage makes clear that the Revised Agreement does not
negate the Agreement’s provisions waiving all rights to
litigate employment-related disputes concertedly. Em-
ployees would thus reasonably read the Revised Agree-
ment as merely stating that the Respondent will not retal-
iate against them if they file a class or collective action.
The right “to commence, be a party to, or [act as a] class
member in” the action itself remains waived.
The Respondent argues that the Revised Agreement is
nonetheless lawful because it permits employees to file
Board charges “addressing the enforcement” of the
Agreement. The Board, however, rejected this very ar-
gument in D. R. Horton. See 357 NLRB 2277, 2283. As
the Board explained, such language does not cure the
construe it as prohibiting them from filing unfair labor practice charges
with the Board.
99 The amended complaint does not specifically allege that the Re-
vised Agreement violates Sec. 8(a)(1). It does, however, allege that the
Respondent, since July 28, 2010, has violated Sec. 8(a)(1) by maintain-
ing and enforcing an agreement titled “Binding Arbitration Agreement
and Waiver of Jury Trial.” The Revised Agreement, like the Agree-
ment, has that title. And the Respondent has maintained and enforced
the Revised Agreement “since July 28, 2010,” because the Revised
Agreement became effective after that date on March 6, 2012. The
General Counsel’s arguments on brief make clear that he considers the
amended complaint to challenge the lawfulness of the Revised Agree-
ment, and the Respondent does not contest this. Consistent with the
positions of the parties and language of the amended complaint, we find
that the lawfulness of the Revised Agreement is properly before us.
Agreement’s restriction on exercising Section 7 rights
because “[e]mployees still would reasonably believe that
they were barred from filing or joining class or collective
action, as the arbitration agreement . . . still expressly
state[s] that they waive the right to do so.” Id. At best,
the language added to the Agreement in the Revised
Agreement creates an ambiguity, which must be con-
strued against the Respondent as the drafter of the Re-
vised Agreement. See Lafayette Park Hotel, 326 NLRB
824, 828 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999).
Thus, even assuming that the Revised Agreement does
not expressly prohibit the exercise of Section 7 rights, it
still violates Section 8(a)(1) because employees subject
to the Revised Agreement would reasonably construe it
as waiving their right to pursue employment-related
claims concertedly in all forums. See Lutheran Heritage
Village, supra, 343 NLRB at 647.
3. The Respondent’s efforts to enforce its unlawful
Agreements also violate Section 8(a)(1)
We further find that the Respondent violated Section
8(a)(1) by enforcing the Agreement through its motion to
dismiss the plaintiffs’ FLSA collective action and to
compel them to arbitrate their claims individually. It is
well settled that an employer violates Section 8(a)(1) by
enforcing a rule that unlawfully restricts Section 7 rights.
See, e.g., NLRB v. Washington Aluminum Co., 370 U.S.
9, 16–17 (1962); Republic Aviation Corp., 324 U.S. 793
(1945). That is precisely what the Respondent did
through its motion to dismiss. Moreover, the Supreme
Court long ago recognized the authority of the Board to
prevent an employer from benefitting from “contracts
which were procured through violation of the Act and
which are themselves continuing means of violating it,
and from carrying out any of the contract provisions, the
effect of which would be to infringe the rights guaran-
teed by the National Labor Relations Act.” National
Licorice Co., supra, 309 U.S. at 365 (enforcing Board
order requiring employer to cease enforcing individual
contracts under which employees waived rights under the
Act). Our determination that the Respondent violated the
Act by its court motion to enforce its unlawful Agree-
ment is consistent with these principles and prece-
dents.100 The Respondent contends, however, that the
First Amendment as construed by the Supreme Court in
BE & K Construction Co., 536 U.S. 516 (2002), pre-
cludes us from finding that the Respondent violated the
Act by litigating its motion in court. We have carefully
considered this contention in light of the important First
100 See also Kaiser Steel Corp. v. Mullins, supra, 455 U.S. at 83
(“[A] federal court has a duty to determine whether a contract violates
federal law before enforcing it.”).

MURPHY OIL USA, INC. 793
Amendment interests at stake, and we conclude that it is
unavailing.
The First Amendment protects the right to petition the
Government for redress of grievances. Although by its
wording this protection seems to extend only to parties in
an offensive litigating posture—e.g., plaintiffs—courts
have construed the First Amendment as extending this
protection to defendants as well,101 and we will assume
likewise. To safeguard this constitutional right, the Su-
preme Court has held that the Board may find the filing
and prosecution of an ongoing or completed lawsuit to be
an unfair labor practice only if the lawsuit is both objec-
tively baseless and subjectively motivated by an unlaw-
ful purpose—i.e., if it lacks a reasonable basis in fact or
law and was prosecuted with a retaliatory motive. Bill
Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983)
(ongoing actions); BE & K Construction, above (com-
pleted actions).
In Bill Johnson’s, however, the Court carved out an
exception for two situations in which a lawsuit enjoys no
such First Amendment protection: where the action is
beyond a State court’s jurisdiction because of Federal
preemption, and, as pertinent here, where “a suit . . . has
an objective that is illegal under federal law.” 461 U.S.
at 737 fn. 5. Thus, the Board may restrain litigation ef-
forts that have an illegal objective, even if—like the Re-
spondent’s successful motion before the court—those
efforts are “otherwise meritorious.” See Teamsters Local
776 v. NLRB, 973 F.2d 230, 236 (3d Cir. 1992).102
Under settled law, a party acts with an illegal objective
when it seeks to enforce an agreement that is unlawful
under the Act. For example, in Elevator Constructors
(Long Elevator), the Board found that a union violated
Section 8(b)(4)(ii)(A) by filing a grievance “predicated
on a reading . . . of the collective-bargaining agreement
that would convert it into a de facto hot cargo provision,
in violation of Section 8(e).” 289 NLRB 1095, 1095
(1988), enfd. 902 F.2d 1297 (8th Cir. 1990). The Board
enjoined the union from pursuing its grievance, explain-
ing that “[b]ecause we have concluded that the contract
clause as construed by the [union] would violate Section
101 See Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1184 (9th
Cir. 2005) (stating that “asking a court to deny one’s opponent’s peti-
tion is also a form of petition”); In re Burlington Northern, Inc., 822
F.2d 518, 532 (5th Cir. 1987) (“We perceive no reason to apply any
different [First Amendment protection] standard to defending lawsuits
than to initiating them.”).
102 Contrary to the Respondent’s suggestion on brief, the Court’s de-
cision in BE & K “did not alter the Board’s authority to find court pro-
ceedings that have an illegal objective under federal law to be an unfair
labor practice.” Dilling Mechanical Contractors, 357 NLRB 289, 291
(2011); see also Can-Am Plumbing v. NLRB, 321 F.3d 145, 151 (D.C.
Cir. 2003); Small v. Plasterers Local 200, 611 F.3d 483, 492 (9th Cir.
2010).
8(e), we may properly find the pursuit of the grievance
coercive, notwithstanding the Supreme Court’s decision
in Bill Johnson’s.” Id.103 Notably, the Board broadly
clarified the difference between a retaliatory motive,
which by itself does not remove a party from First
Amendment protection, and an illegal objective of “seek-
ing to enforce an unlawful contract provision.” Id. (cit-
ing Teamsters Local 705 v. NLRB (Emery Air Freight),
820 F.2d 448 (D.C. Cir. 1987)). Reviewing courts have
uniformly accepted this reasoning.104
So also, as the Court recognized in Bill Johnson’s, the
Board may find unlawful under the Act, without imping-
ing on the First Amendment, union lawsuits to collect
fines imposed on employees who crossed a picket line
after resigning from the union. The Court observed that
it had previously enforced Board orders in such cases.105
As the Court explained in Bill Johnson’s, such lawsuits
have an illegal objective because they seek “enforcement
of fines that could not lawfully be imposed under the
Act.” 461 U.S. at 737 fn. 5. Thus, litigation has an ille-
gal objective and may properly be found to violate the
Act where it is “simply an attempt to enforce an underly-
ing act that is itself an unfair labor practice.” Regional
Construction Corp., 333 NLRB 313, 319 (2001).
103 See also Longshoremen Local 1291 (Holt Cargo Systems), 309
NLRB 1283 (1992); Service Employees Local 32B-32J (Nevins Realty
Corp.), 313 NLRB 392 (1993), enfd. in relevant part 68 F.3d 490 (D.C.
Cir. 1995); Iron Workers (Southwestern Materials), 328 NLRB 934
(1999).
104 See NLRB v. Local 1131, 777 F.2d 1131, 1141 (6th Cir. 1985)
(“[W]here, as here, the object of the grievance is to enforce an illegal
contractual provision, the Board is fully empowered to enjoin the party
from pursuing the grievance.”); Nelson v. Electrical Workers Local 46,
899 F.2d 1557, 1562–1563 (9th Cir. 1990) (finding that because there
were “substantial grounds to believe the Agreement, as construed by
the Union, violates section 8(e), Bill Johnson’s does not preclude the
Board or the court from enjoining the Union’s attempts to enforce the
contract”); Local 32B-32J v. NLRB, 68 F.3d 490, 495–496 (D.C. Cir.
1995) (finding that union’s pursuit of arbitration had an illegal objec-
tive “from the start” because its sole purpose was to enforce the union’s
interpretation of a contract that would “necessarily result in an illegal
hot cargo agreement”).
105 See 461 U.S. at 737 fn. 5 (citing Booster Lodge 405, IAM (Boeing
Co.), 185 NLRB 380 (1970), enfd. in relevant part 459 F.2d 1143 (D.C.
Cir. 1972), affd. 412 U.S. 84 (1973); and Granite State Joint Board,
187 NLRB 636 (1970), enf. denied 446 F.2d 369 (1st Cir. 1971), revd.
409 U.S. 213 (1972)). In Booster Lodge, the Board found that a un-
ion’s postresignation fines unlawfully restrained employees in the
exercise of their Sec. 7 right to refrain from concerted activities because
the fines were “inherently coercive” and “calculated to force an indi-
vidual both to pay money and to engage in particular conduct against
his will.” 185 NLRB at 381–382. Subsequently, in Granite State Joint
Board, the Board found that a union violated Sec. 8(b)(1)(A) when it
sought to enforce unlawful fines in state court. 187 NLRB at 636, 643.
The Board ordered that union to take “all necessary action” in the State
court “to withdraw and give up all claims for said fines.” Id. at 637,
645.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 794
Consistent with this analysis, we find that the Re-
spondent acted with an illegal objective when it moved
to compel arbitration of the plaintiffs’ FLSA claims and
to dismiss their collective action, and when it continued
to maintain that position in subsequent court filings, to
enforce an underlying act—the Agreement—that is itself
an unfair labor practice. This motion had the illegal ob-
jective of “seeking to enforce an unlawful contract provi-
sion.” See Long Elevator, 289 NLRB at 1095. And, like
the union fine litigation condemned by the Court in
Granite State Joint Board and Bill Johnson’s, the motion
was an attempt to enforce an agreement that interfered
with employees’ exercise of their Section 7 rights and
thus “could not lawfully be imposed under the Act.” Bill
Johnson’s, 461 U.S. at 737 fn. 5. Accordingly, our find-
ing that the Respondent violated Section 8(a)(1) by main-
taining its motion is fully consistent with the principles
established in Bill Johnson’s and BE & K.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. By maintaining a mandatory arbitration agreement
that employees reasonably would believe bars them from
filing charges with the National Labor Relations Board,
and by maintaining and/or enforcing a mandatory arbitra-
tion agreement under which employees are compelled, as
a condition of employment, to waive the right to main-
tain class or collective actions in all forums, whether
arbitral or judicial, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act, and has violated Sec-
tion 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Consistent with the
Board’s usual practice in cases involving unlawful litiga-
tion, we shall order the Respondent to reimburse the
plaintiffs for all reasonable expenses and legal fees, with
interest,106 incurred in opposing the Respondent’s unlaw-
ful motion to dismiss their collective FLSA action and
compel individual arbitration. See Bill Johnson’s, 461
U.S. at 747 (“If a violation is found, the Board may order
106 Interest shall be computed in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
See Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835 fn. 10 (1991)
(“[I]n make-whole orders for suits maintained in violation of the Act, it
is appropriate and necessary to award interest on litigation expenses.”),
enfd. 973 F.2d 230 (3d Cir. 1992), cert. denied 507 U.S. 959 (1993).
the employer to reimburse the employees whom he had
wrongfully sued for their attorneys’ fees and other ex-
penses” and “any other proper relief that would effectu-
ate the policies of the Act.”). We shall also order the
Respondent to rescind or revise the Agreement and Re-
vised Agreement, to notify employees and the district
court that it has done so, and to inform the district court
that it no longer opposes the plaintiffs’ claims on the
basis of the Agreement.
ORDER
The National Labor Relations Board orders that the
Respondent, Murphy Oil USA, Inc., Calera, Alabama, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a mandatory arbitration agreement that
employees reasonably would believe bars or restricts the
right to file charges with the National Labor Relations
Board.
(b) Maintaining and/or enforcing a mandatory arbitra-
tion agreement that requires employees, as a condition of
employment, to waive the right to maintain class or col-
lective actions in all forums, whether arbitral or judicial.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the Binding Arbitration Agreement and
Waiver of Jury Trial (Agreement and Waiver) in all of its
forms, or revise it in all of its forms to make clear to em-
ployees that the Agreement and Waiver does not consti-
tute a waiver of their right to maintain employment-
related joint, class, or collective actions in all forums,
and that it does not restrict employees’ right to file
charges with the National Labor Relations Board.
(b) Notify all applicants and current and former em-
ployees who were required to sign the Agreement and
Waiver in any form that the Agreement and Waiver has
been rescinded or revised and, if revised, provide them a
copy of the revised agreement.
(c) Notify the United States District Court for the
Northern District of Alabama that it has rescinded or
revised the mandatory arbitration agreements upon which
it based its motion to dismiss Sheila Hobson’s and her
coplaintiffs’ FLSA collective action and to compel arbi-
tration of their claims, and inform the court that it no
longer opposes the plaintiffs’ FLSA action on the basis
of those agreements.
(d) In the manner set forth in the remedy section of this
decision, reimburse the plaintiffs for any reasonable at-
torneys’ fees and litigation expenses that they may have

MURPHY OIL USA, INC. 795
incurred in opposing the Respondent’s motion to dismiss
their wage claim and compel individual arbitration.
(e) Within 14 days after service by the Region, post at
its Calera, Alabama facility copies of the attached notice
marked “Appendix A” and at all other facilities nation-
wide copies of the attached notice marked “Appendix
B.”107 Copies of the notice, on forms provided by the
Regional Director for Region 10, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, or other electronic
means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notic-
es are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice marked “Appendix A” to all current
employees and former employees employed by the Re-
spondent at any time since July 28, 2010.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 10 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

MEMBER MISCIMARRA, dissenting in part.
The English poet John Donne wrote that “[n]o man is
an island, entire of itself; every man is a piece of the con-
tinent, a part of the main.”1 So too is the National Labor
Relations Act (NLRA or the Act). The NLRA coexists
with a broad array of other Federal statutes, in addition to
State and local laws. In today’s decision, my colleagues
treat our statute as the protector of “class” action proce-
dures under all laws, everywhere. However, it does no
disrespect to the Act to recognize its reasonable limita-
tions.
When adopting the NLRA, Congress intended to pro-
tect employees from retaliation for engaging in certain
concerted activities for mutual aid and protection. This
107 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 John Donne, Meditation XVII from Devotions Upon Emergent Oc-
casions, and severall steps in my Sicknes (1624).
can include protection against retaliation based on con-
certed activities that relate to non-NLRA claims or com-
plaints against an employer or union.2 Yet, I believe
Congress did not vest the NLRB with authority to dictate
what internal procedures must govern non-NLRA claims
adjudicated by courts and agencies other than the NLRB.
Nor can it be correct to suggest that the NLRA in this
area “trumps all other Federal statutes.”3 The Act cannot
reasonably be interpreted as giving employees a broad-
based right to “class” treatment under other Federal,
State, and local laws. Indeed, as noted below, most of
these other laws—and the modern treatment of “class”
litigation—did not even exist until long after the NLRA
was enacted. And one can hardly attribute to Congress a
decision, as part of the NLRA, to protect “class” litiga-
tion under all kinds of other laws when those other
laws—even at present—do not attach a common mean-
ing to what constitutes “class” litigation.
As indicated in part A below, I agree with the majority
that the NLRA affords protection to two or more em-
ployees who, while acting in concert, initiate or partici-
pate in one or more non-NLRA legal claims for the pur-
pose of mutual aid or protection.4 However, I respectful-
ly dissent from the majority’s finding here—and I disa-
gree with the Board’s holding in D. R. Horton5—that
Section 8(a)(1) of the Act prohibits employees and em-
ployers from entering into agreements that waive “class”
procedures in litigation or arbitration.
Four considerations warrant a conclusion, in my view,
that the Act does not prohibit or contemplate any particu-
lar treatment of “class” procedures and waivers relating
to non-NLRA claims.
First, as indicated in part B below, nothing reasonably
supports a conclusion that Congress, in the NLRA, vest-
ed the Board with authority to dictate or guarantee how
other courts or other agencies would adjudicate non-
NLRA legal claims, whether as “class actions,” “collec-
tive actions,” the “joinder” of individual claims, or oth-
erwise. Rather, Congress clearly contemplated that such
procedural details would be adjudicated in accordance
with procedures prescribed in non-NLRA statutes, sup-
plemented by procedural rules authorized or adopted by
Congress, State legislatures, and the courts and agencies
2 Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).
3 Electrical Workers Local 48 (Kingston Constructors), 332 NLRB
1492, 1501 (2000), supplemented 333 NLRB 963 (2001), enfd. 345
F.3d 1049 (9th Cir. 2003)
4 I also agree with the majority’s finding that—separate from the
“class” waiver contained in Respondent’s arbitration agreement—the
original agreement violated Sec. 8(a)(1) by indicating that disputes
arising under the NLRA, instead of being the subject of charges re-
solved by the Board, had to be resolved in mandatory arbitration.
5 357 NLRB 2277 (2012), enf. denied 737 F.3d 344 (5th Cir. 2013).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796
charged with enforcing non-NLRA claims.6 Because the
NLRA does not dictate or prescribe any particular proce-
dures governing non-NLRA claim adjudications, I be-
lieve the Board lacks authority to conclude that “class”
waivers constitute unlawful restraint, coercion, or inter-
ference in violation of Section 8(a)(1).
Second, Section 9(a) protects the right of employees
and employers “at any time” to adjust “grievances” on an
“individual” basis.7 Therefore, as indicated in part C
below, I believe Section 9(a) protects the right of indi-
vidual employees and their employer to enter into a
“class” waiver agreement and other agreements to adjust
claims on an “individual” basis.
Third, as described in the separate dissenting opinion
by Board Member Johnson, it is likewise clear that the
Act does not prohibit “class” waivers in employment
agreements providing for the arbitration of non-NLRA
legal claims consistent with the Federal Arbitration Act
(FAA). As to this issue, among others, I agree with
Member Johnson’s dissenting opinion and the dozens of
court cases that have refused to apply D. R. Horton, su-
pra.
Fourth, as indicated in part D below, I believe the Act
and its legislative history render inappropriate the reme-
dies ordered by the Board here, especially the required
payment of attorneys’ fees incurred by the Charging Par-
ty in opposing Respondent’s meritorious motion to dis-
miss, which the district court granted.
Discussion
A. The NLRA Protects Concerted Employee Activities for
Mutual Aid or Protection that Relate to the Pursuit of
Non-NLRA Legal Claims
This case turns on the interpretation of Section 8(a)(1)
and Section 7 of the Act. Section 8(a)(1) states it is un-
lawful for an employer to “interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed
in section 7.” In relevant part, Section 7 states:

Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing,
and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection.8

6 In the remainder of this opinion, the following abbreviations are
used: Federal Rules of Civil Procedure (FRCP or Federal Rules), Equal
Employment Opportunity Commission (EEOC); the Fair Labor Stand-
ards Act (FLSA); and Title VII of the Civil Rights Act of 1964 (Title
VII).
7 Sec. 9(a) (emphasis added).
8 Sec. 7 (emphasis added).
The scope of Section 7 was discussed at length in our
recent decision in Fresh & Easy Neighborhood Market.9
On its face, Section 7 contains “words of limitation.”
Fibreboard Paper Products Corp. v. NLRB, 379 U.S.
203, 220 (1964) (Stewart, J., concurring). Statutory lan-
guage must be construed as a whole, and particular
words or phrases are to be understood in relation to asso-
ciated words and phrases.10
Section 7 enumerates three specific types of protected
employee activity: “self-organization,” “form[ing],
join[ing], or assist[ing] labor organizations,” and “bar-
gain[ing] collectively through representatives.” It then
enumerates a fourth category, encompassing “other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection.” The first three enu-
merated types of protected activity— “self-organization,”
“to form, join, or assist labor organizations,” and “to bar-
gain collectively”—shed some light on the meaning of
“other concerted activities for the purpose of . . . other
mutual aid or protection.”11 As the Supreme Court ob-
served in Eastex v. NLRB,12 Section 7 was designed “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.’”13
The Supreme Court held in Eastex that the protection
afforded to concerted activities undertaken for mutual aid
or protection is not lost when employees resort to “chan-
nels outside the immediate employee-employer relation-
ship.” Id. at 565. In Eastex, employees sought to dis-
tribute a newsletter dealing with the State’s right-to-work
law and minimum wage legislation. Upholding the
Board’s determination that distribution of the newsletter
9 361 NLRB 151 (2014) (Fresh & Easy). In Fresh & Easy, I au-
thored a partial dissenting opinion based on my view that the record did
not support a conclusion that the employee there engaged in protected
Sec. 7 activity (by insisting that two coemployees, over their objection,
sign a paper that did nothing more than reproduce a profane message
that had been written on a whiteboard). However, I agreed with the
broad proposition that protected activity under Sec. 7 could arise from
“concerted” activities by two or more employees in relation to a single
employee’s pursuit of his or her individual non-NLRA claim against
the employer.
10 2A Norman J. Singer, Statutes and Statutory Construction (Suth-
erland Statutory Construction) Sec. 47.16 (5th ed. 1992).
11 See, e.g., Mohave Electric Cooperative, Inc. v. NLRB, 206 F.3d
1183, 1191–1192 (D.C. Cir. 2000) (“[T]he canon of ejusdem generis
. . . counsels against our reading [a] general phrase to include conduct
wholly unlike that specified in the immediately preceding list . . . .”).
12 437 U.S. at 565 (emphasis added).
13 Sec. 7 also protects the right of employees to “refrain from any or
all” of the activities described in the statutory language. In my view,
this protected right to “refrain” from protected activity bears on the
right of individual employees to enter into agreements with their em-
ployers providing for the resolution of claims and disputes on an “indi-
vidual” basis, which is described in part C below.

MURPHY OIL USA, INC. 797
was protected under the Act, the Supreme Court ex-
plained:

[I]t has been held that the “mutual aid or protection”
clause protects employees from retaliation by their em-
ployers when they seek to improve working conditions
through resort to administrative and judicial fo-
rums. . . . To hold that activity of this nature is entirely
unprotected—irrespective of location or the means em-
ployed—would leave employees open to retaliation for
much legitimate activity that could improve their lot as
employees.14
Again, in Eastex the Supreme Court, citing Board and
court decisions, stated it was protected for employees to
“resort” to other agencies and courts as part of their con-
certed activities for mutual aid or protection.15 In each of
the cited examples where resort to an agency or court
regarding a non-NLRA claim or complaint was protect-
ed, the cases focused on protecting employees from re-
taliation for initiating or participating in the proceeding.
None of the cases dealt—even remotely—with the inter-
nal procedures applicable to the non-NLRA claims or
complaints associated with the employee activities.16
This is consistent with the Supreme Court’s statement,
noted above, that “mutual aid or protection” expanded
14 Id. at 565 (fns. omitted), citing Walls Mfg. Co., 137 NLRB 1317,
1319 (1962), enfd. 321 F.2d 753 (D.C. Cir. 1963), cert. denied 375 U.S.
923 (1963) (employee’s discharge in retaliation for letter to “State
regulatory agency”—the state health department—complaining about
unsanitary conditions violated Sec. 8(a)(1)); Socony Mobil Oil Co., 153
NLRB 1244, 1245, 1248 (1965), enfd. 357 F.2d 662 (2d Cir. 1966)
(employee suspension in retaliation for alleged insolent and insubordi-
nate behavior “during the Coast Guard investigation aboard ship” and
“complaint to the Coast Guard” violated Sec. 8(a)(1)); Altex Ready
Mixed Concrete Corp. v. NLRB, 542 F.2d 295, 297 (5th Cir. 1976) (two
employee discharges based on alleged failure to read affidavits filed in
union’s State court injunction proceeding violated Sec. 8(a)(1); court
finds that “filing by employees of a labor related civil action is protect-
ed activity under section 7”), enfg. 223 NLRB 696 (1976); Wray Elec-
tric Contracting, Inc., 210 NLRB 757, 761 (1974) (employee discharge
for filing “a complaint with OSHA” on behalf of union violated Sec.
8(a)(3) and (1)); King Soopers, Inc., 222 NLRB 1011, 1018 (1976)
(employee discharge in retaliation for employee’s filing of “civil rights
charges” with EEOC and state EEO agency violated Sec. 8(a)(1));
Triangle Tool & Engineering, Inc., 226 NLRB 1354, 1357 (1976)
(employee discharge in retaliation for union activity and “soliciting the
aid of the Wage and Hour Division” of the U.S. Dept. of Labor violated
Sec. 8(a)(3) and (1)); Alleluia Cushion Co., 221 NLRB 999 (1975)
(employee discharge in retaliation for employee’s filing of “letter of
complaint to the California OSHA office” violated Sec. 8(a)(1)). The
Board’s decision in Alleluia Cushion—where an employee’s conduct
was deemed “concerted” even though pursued based on a concern
about his own safety—was overruled in Meyers Industries, 268 NLRB
493 (1984) (Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941
(D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985).
15 437 U.S. at 565.
16 See the case descriptions set forth in fn. 14, supra.
Section 7 protection only “somewhat” beyond the partic-
ular concerted activities enumerated in Section 7—i.e.,
self-organization, creating and supporting unions, and
collective bargaining.
Applying these principles, I agree that a broad range of
“concerted” activities are protected under Section 7, if
undertaken by two or more employees for “mutual aid or
protection,” even though they may involve non-NLRA
legal claims. For example, Section 8(a)(1) and (b)(1)(A)
prohibit retaliation if two or more employees—for mutu-
al aid or protection—engage in concerted activities that
involve:

• initiating or participating in non-NLRA employ-
ment-related agency charges or complaints;17
• initiating or participating in non-NLRA employ-
ment-related claims filed in Federal, State or local
courts;18
• meeting with one another to identify witnesses,
facts, documents, and other evidence supporting
non-NLRA employment-related charges or
claims;19
• engaging in work stoppages (if not prohibited by a
no-strike commitment in a collective-bargaining
agreement) or otherwise expressing solidarity and
mutual support for non-NLRA employment-
related charges or claims;20
• meeting with the same attorney(s) who represent
employees in non-NLRA employment-related
agency or court cases;21
• publicizing and/or raising funds or public aware-
ness regarding non-NLRA employment-related
agency or court cases.22
17 See, e.g., Walls Mfg. Co., Socony Mobil Oil Co., Wray Electric
Contracting, Inc., and Triangle Tool & Engineering, Inc., described in
fn. 14, supra.
18 See, e.g., Altex Ready Mixed Concrete Corp. v. NLRB, described
in fn. 14, supra.
19 Sarkes Tarzian, Inc., 149 NLRB 147, 149, 153 (1964) (three em-
ployees met with union attorney to discuss filing of libel action against
employer); Salt River Valley Water Users Assn., 99 NLRB 849, 853–
854 (1952) (discussion and circulation of a petition designating em-
ployee as other employees’ agent in an FLSA suit for wages was pro-
tected, concerted activity and discharge of petition circulator violated
the Act), enfd. 206 F.2d 325 (9th Cir. 1953).
20 Salt River Valley Water Users Assn., above.
21 Spandsco Oil & Royalty Co., 42 NLRB 942, 948–950 (1942)
(three employees jointly consulted attorney regarding FLSA claims and
thereafter jointly filed FLSA suit against employer; suit constituted
concerted activity protected by the Act and discharge of employees for
filing suit violated the Act); Sarkes Tarzian, Inc., above (employees
jointly consulted attorney regarding claims against employer).
22 California Institute of Technology Jet Propulsion Laboratory, 360
NLRB 504 (2014) (emails publicizing litigation against employer);

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798
Significantly, in each of the above cases, the existence
or absence of Section 7 protection did not depend on
whether the non-NLRA claim or complaint was pursued
as a “class” action. Rather, if Section 7’s statutory re-
quirements are present—i.e., “concerted” activities for
the “purpose” of “mutual aid or protection”23—the Act
prohibits retaliation without regard to whether the non-
NLRA legal matters are handled, procedurally, as a class
action, a collective action, through joinder of individual
claims, or as an individual claim.24
Conversely, the mere existence of a non-NLRA legal
claim or complaint—or the involvement of two or more
employees in some of the above activities—does not
necessarily mean the employees are engaged in “concert-
ed” activity, nor does it necessarily establish the “pur-
pose” of “mutual aid or protection.” Many non-NLRA
employment discrimination claims or complaints—
brought under Title VII or the Age Discrimination in
Employment Act (ADEA), for example—may involve
no “relation to group action in the interest of the employ-
ees.” Mushroom Transportation Co. v. NLRB, 330 F.2d
683, 685 (3d Cir. 1964). Therefore, even though co-
employees may be witnesses or have other involvement
in a non-NLRA legal proceeding,25 Section 7 protection
United Parcel Service, 252 NLRB 1015, 1018, 1022 fn. 26 (1980)
(employee circulated a petition among employees to join a class action
suit alleging violations of a State rest period law, collected money from
his fellow employees for the retainer fee, and thereafter kept them
informed of the progress of the suit, which was filed with 13 employees
named as plaintiffs), enfd. 677 F.2d 421 (6th Cir. 1982).
23 The presence or absence of protected activity turns on whether
Sec. 7’s statutory requirements are present—i.e., is there “concerted”
activity by two or more employees engaged in for (i) self-organization,
(ii) forming, joining, or assisting labor organizations, (iii) collective
bargaining, or (iv) the “purpose” of “other mutual aid or protection.”
See Fresh & Easy, 361 NLRB 151, 163 (2014) (Member Miscimarra,
dissenting in part).
24 The Board recognized in Fresh & Easy, 361 NLRB 151, 153–
155–156, that pursuit of an individual claim or complaint by a single
employee can still give rise to “concerted” activity by two or more
employees for the “purpose” of “mutual aid or protection” sufficient to
trigger Sec. 7 protection. However, as expressed in my partial dissent
in Fresh & Easy, supra, at 165–169, I believe this must be proven based
on the facts presented in each case.
25 Coemployees will often be potential witnesses in a single employ-
ee’s employment-related legal dispute involving non-NLRA claims.
However, the mere involvement of coemployees who witness one or
more events in the workplace does not establish the existence of pro-
tected concerted activity under Sec. 7. Even if a coemployee appears as
a witness in an employment-related legal proceeding, one cannot pre-
dict in advance whether the coemployee’s participation would support
or undermine the coemployee’s claim, and it is equally unclear whether
their testimony might be sought or relied upon by the employer, the
union, or a fellow employee. In all cases, therefore, the presence or
absence of Sec. 7 protection turns on whether the statutory require-
ments set forth in Sec. 7 are proven (i.e., “concerted” activity looking
towards some type of “group action,” with an underlying “purpose” of
“mutual aid or protection”). The Act’s protection cannot be inferred
is not implicated unless the evidence proves, first, the
presence of “concerted” activity—i.e. activity “looking
toward” some type of “group action”—and second, a
“purpose” of “mutual aid or protection.” Id.; see general-
ly Meyers I, supra; Meyers Industries, 281 NLRB 882
(1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835
F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1988).
B. The NLRA does not Protect or Restrict—or
Vest Authority in the Board to Dictate or Guarantee—
Non-NLRA Procedures Regarding how Other
Courts or Other Agencies will Adjudicate
Non-NLRA Legal Claims
As noted above (and as we reaffirmed in Fresh &
Easy), Section 7 protection may arise from “concerted”
actions by two or more employees for mutual aid or pro-
tection, even if those actions relate to a claim litigated or
pursued on an individual basis. So “class” litigation is
not necessary to Section 7 protection.
Nor is “class” litigation, by itself, sufficient to establish
protected Section 7 conduct. The essence of “class” liti-
gation is that the litigation binds nonparticipating parties.
Thus, the class action is “an exception to the usual rule
that litigation is conducted by and on behalf of the indi-
vidual named parties only.” Califano v. Yamasaki, 442
U.S. 682, 700–701 (1979); Wal-Mart Stores, Inc. v.
Dukes, 131 S.Ct. 2541, 2550 (2011); see also AT&T Mo-
bility LLC v. Concepcion, 131 S.Ct. 1740, 1750 (2011)
(“Classwide arbitration includes absent parties, necessi-
tating additional and different procedures and involving
higher stakes.”). By comparison, Section 7 protection
arises only when two or more employees “engage in”
activities that are “concerted” and have the purpose of
“mutual aid or protection.”26 Meyers I and Meyers II,
supra. If anything, the pursuit of similar claims by em-
ployee-litigants in separate cases, and the “joinder” of
individual claims in a single case,27 are both more likely
to involve protected Section 7 conduct than “class” liti-
gation because the former scenarios, unlike “class” litiga-
from the mere involvement of two or more coemployees in a non-
NLRA proceeding.
26 Sec. 7 also protects the right of employees to “refrain from” en-
gaging in activities that would otherwise be protected under the Act.
27 The term joinder refers to having multiple parties or claims com-
bined in the same case. See FRCP 18–21. Under the FRCP, the “join-
der” of multiple parties may in some cases be required. FRCP 19
(“Required Joinder of Parties”). The Federal rules clearly favor “join-
der”—where multiple parties all participate actively in the litigation—
over “class litigation,” reflected in the fact that Rule 23(a)(1) states
“class” treatment will be permitted only if, in addition to other prereq-
uisites, the court finds that “the class is so numerous that joinder of all
members is impracticable.”

MURPHY OIL USA, INC. 799
tion, necessarily involve multiple employees engaged in
activities having common or similar objectives.28
I believe my colleagues in the majority—like the
Board in D. R. Horton—mistakenly conflate “class” liti-
gation with Section 7 protected activity. For the reasons
noted above, however, the filing of a “class” action com-
plaint by a single employee does not inherently involve
protected concerted activity. And if multiple employees
have the same or similar non-NLRA claims against an
employer, my colleagues are mistaken in their assump-
tion that Congress, in the NLRA, vested authority in the
Board to guarantee that the claims would be afforded
“class” treatment in litigation.
In my view, several considerations warrant a conclu-
sion—contrary to the findings of the majority here and to
D. R. Horton—that Congress in the Act did not intend to
protect or prohibit any procedures by which non-NLRA
legal claims would be adjudicated by courts or other
agencies and tribunals.
First, as illustrated in part A above, Section 7 protects
employees who, in pursuit of a non-NLRA legal claim,
engage in “concerted” activity with the “purpose” of mu-
tual aid or protection, regardless of whether the matter,
procedurally, is afforded “class” or other treatment by the
State, Federal, or local court or agency. Here, one need
look no further than the Supreme Court’s Eastex deci-
sion, which stated that, among the types of concerted
employee activities potentially protected under Section 7,
was a “resort to administrative and judicial forums,” and
the Court made no reference to the procedures that might
govern any non-NLRA employment claims or com-
plaints. It is significant, in this regard, that none of the
Board and court cases cited by the Court involved
28 I respectfully disagree with the statement in D. R. Horton that
“[c]learly, an individual who files a class or collective action regarding
wages, hours or working conditions, whether in court or before an
arbitrator, seeks to initiate or induce group action and is engaged in
conduct protected by Section 7.” 357 NLRB 2277, 2279. When an
individual files a class or collective action, there is no involvement by
any other employees, the act of filing does not constitute an appeal to
other employees, there is no assurance that other employees will partic-
ipate in the matter (indeed, the point of class action litigation is to bind
nonparticipants), and there is no certainty that the court or other adjudi-
cator will find that “class” or “collective” treatment is appropriate. For
these reasons, it is unsurprising that this statement in D. R. Horton is
unaccompanied by legal citation. Sec. 7 on its face and controlling
Board precedent make clear that the Act’s protection is triggered only
where the evidence proves that “concerted” activities—defined as
conduct that, at the least, looks toward “group action”—is being under-
taken for the “purpose” of “mutual aid or protection.” Meyers I and
Meyers II, supra; Mushroom Transportation Co. v. NLRB, 330 F.2d at
685. In my view, the filing of a legal claim or complaint by a single
employee—regardless of what procedural treatment the person may
desire—does not instantly convert the endeavor into “concerted” or
“group” action, nor does it necessarily establish a “purpose” of “mutual
aid or protection” by and between multiple employees.
“class” litigation or “class” claims. See footnote 14, su-
pra.
Second, it defies reason to suggest that Congress, in
1935, incorporated into the NLRA a guarantee that non-
NLRA claims will be afforded “class” treatment when
there was no uniformity then—nor is there now—
regarding what “class” treatment even means. The ma-
jority cites D. R. Horton, supra, for the proposition that
Section 7 confers a “right to litigate . . . employment-
related claims concertedly on a joint, class, or collective
basis” (emphasis added), but these terms have very dif-
ferent meanings. In D. R. Horton, the Board conceded:
“Depending on the applicable class or collective action
procedures, of course, a collective claim or class action
may be filed in the name of multiple employee-plaintiffs
or a single employee-plaintiff, with other class members
sometimes being required to opt in or having the right to
opt out of the class later.” 357 NLRB 2277, 2279 (em-
phasis added). Even this description grossly oversimpli-
fies the variation among different ways that non-NLRA
multiple-party claims might be litigated in one or more
related proceedings:

• Under FRCP Rule 23, a single class “member”
may sue on behalf of all other class members and,
if a Rule 23 class is certified, the non-participating
members who do nothing will be bound by the re-
sults of the litigation, unless they affirmatively re-
quest “exclusion.” FRCP Rule 23(c)(2)(B)(v),
23(c)(3)(A), (B). Requesting exclusion is com-
monly referred to as “opting out” of the class.
• As the majority notes in the instant case, other
types of non-NLRA “collective” claims—for ex-
ample, those involving alleged Fair Labor Stand-
ards Act (FLSA) violations like those alleged by
the charging party, Sheila M. Hobson (Hobson)—
bind nonparticipating class members only if they
“opt in” to the class.
• Under the Federal Rules, the preferred alternative
to class treatment is to have a “joinder” of all par-
ties, who remain responsible for litigating their re-
spective claims in a single proceeding.29
• In many non-NLRA cases, class-type treatment
may be available for purposes of discovery, but
29 As noted above, a prerequisite to class treatment under FRCP Rule
23(a)(1) is a finding that the “joinder” of multiple parties is impractica-
ble. See fn. 27, supra.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800
may be deemed inappropriate during the trial or
other stages of litigation.30
• In other non-NLRA cases, the claims of multiple
parties—treated separately during discovery or
other stages—may be certified for class-type
treatment solely for purpose of trial or settlement.31
• Some cases involve bifurcated proceedings result-
ing in separate adjudications of the issues of liabil-
ity and damages, respectively, with class-type
treatment regarding one issue and not the other, or
both.32
• In yet other non-NLRA cases involving multiple
claims or parties, one resolution may be deemed
controlling in other proceedings based on the doc-
trines of res judicata, collateral estoppel, claim
preclusion, or issue preclusion.33
• The above examples involve non-NLRA cases ad-
judicated in federal courts under the Federal Rules.
Even more varied rules and procedures regarding
class-type treatment are prescribed, with equally
diverse requirements and prerequisites, under non-
NLRA State and local laws.34
30 The Federal Rules provide that, in “appropriate” cases, “an action
may be brought or maintained as a class action with respect to particu-
lar issues.” FRCP Rule 23(c)(4).
31 See, e.g., Daniel v. Quail International, Inc., 2010 WL 55941, at
*1 (M.D. Ga. 2010) (in FLSA collective claim involving 36 opt-in
plaintiffs, the court conditionally certified the plaintiffs as a class, pend-
ing individualized discovery to determine whether each plaintiff was
similarly situated with the others within the meaning of the FLSA);
Coldiron v. Pizza Hut, Inc., 2004 WL 2601180, at *2 (C.D. Cal. 2004)
(granting motion to compel individualized discovery of 306 opt-in
plaintiffs).
32 “[C]ourts often bifurcate trials into liability and damages phases,
severing common liability questions from individual damages issues.”
5 James Wm. Moore et al., Moore’s Federal Practice ¶ 23.45(2)(a) (3d
ed.1997). See, e.g., Arthur Young & Co. v. U.S. District Court, 549
F.2d 686, 697 (9th Cir. 1977) (affirming district court’s decision “to
separate the individual damage issues from trial of the class issues”);
Wainwright v. Kraftco Corp., 54 F.R.D. 532, 534–535 (N.D. Ga. 1972)
(“If liability is established, other issues, including damages, can be
handled later, perhaps on a class member-by-class member basis.”).
33 See, e.g., Cooper v. Federal Reserve Bank of Richmond, 467 U.S.
867, 874 (1984) (“There is of course no dispute that under elementary
principles of prior adjudication a judgment in a properly entertained
class action is binding on class members in any subsequent litigation.
Basic principles of res judicata (merger and bar or claim preclusion)
and collateral estoppel (issue preclusion) apply” (citations omitted);
Sondel v. Northwest Airlines, Inc., 56 F.3d 934, 938–939 (8th Cir.
1995) (State court judgment against plaintiffs barred them from pursu-
ing a parallel Title VII class claim); Bailey v. DiMario, 925 F.Supp.
801, 810–811 (D.D.C. 1995) (court-approved class action settlement
precluded plaintiffs’ subsequent Federal discrimination claim).
34 State and local courts and agencies often apply procedural rules
that are similar to the Federal rules. However, there is considerable
diversity as to particular details, especially in their case-by-case appli-

The above examples are far from exhaustive, but they
demonstrate that different parties can pursue the same or
similar claims in a near-endless variety of ways. When
enacting the NLRA in 1935, if Congress had intended to
guarantee the availability of one or more of the above
procedures regarding litigation of employees’ non-
NLRA claims, one would reasonably expect this intent to
be reflected in the Act or its legislative history. One
would also expect there to be guidance as to which class-
type procedures, regarding what stages, of non-NLRA
litigation are guaranteed. However, the Act and its legis-
lative history are completely silent as to these issues.
Section 8(a)(1) and (b)(1)(A) merely prohibit restraint
and coercion regarding “rights guaranteed in section 7.”
And Section 7 confers protection triggered by “concert-
ed” activity for the “purpose” of “mutual aid or protec-
tion,” which (as noted in part A above) may arise from
non-NLRA claims and complaints regardless of whether
or not class-type procedures are applicable.
Third, it is no surprise that Congress adopted the
NLRA without mentioning or prescribing any particular
procedures regarding the class-type treatment of non-
NLRA claims. As the Court of Appeals for the Fifth
Circuit observed when rejecting the Board’s holding in
D. R. Horton, “modern class action practice” did not
originate until substantial revisions were made to FRCP
Rule 23 in 1966, more than three decades after the
NLRA’s adoption in 1935. D. R. Horton, Inc. v. NLRB,
737 F.3d 344, 362 (5th Cir. 2013); see also Ortiz v. Fi-
breboard Corp., 527 U.S. 815, 832–833 (1999)
(“[M]odern class action practice emerged in the 1966
revision of Rule 23.”). Likewise, many of our most im-
portant non-NLRA employment statutes—for example,
Title VII, the ADEA, the Family and Medical Leave Act
(FMLA), and the Americans with Disabilities Act
(ADA), among others—were not adopted by Congress
until the mid-1960s and later.
Fourth, if Section 7 guaranteed class-type procedures
relating to claims brought under non-NLRA statutes, this
would produce an array of incongruities that could not
reasonably have been intended by Congress. The NLRA
was designed to create a “single, uniform, national rule”
displacing the “variegated laws of the several States,”35
cation. Moreover, as noted in the text, all non-NLRA claims are gov-
erned by procedures that are very different from the procedures that
govern the Board’s own proceedings.
35 San Diego Building Trades Council v. Garmon, 359 U.S. 236, 239
(1959); see also Garner v. Teamsters Local 776, 346 U.S. 485, 490
(1953) (NLRA reflects a view that “centralized administration of spe-
cially designed procedures was necessary to obtain uniform application
of its substantive rules and to avoid those diversities and conflicts likely
to result from a variety of local procedures and attitudes toward labor
controversies”); Machinists Lodge 76 v. Wisconsin Employment Rela-

MURPHY OIL USA, INC. 801
producing the “uniform application of its substantive
rules and . . . avoid[ing] . . . diversities and conflicts like-
ly to result from a variety of local procedures and atti-
tudes.”36 By comparison, as noted above, there is a near-
endless variety of class-type procedures, their potential
availability varies depending on the type of claim and the
forum in which it is adjudicated,37 and extensive pro-
ceedings are necessary to determine whether class-type
treatment is even appropriate in a given case.38 Such
inherent uncertainty and variation regarding class-type
treatment—if incorporated into the NLRA—would pre-
clude any “single, uniform, national rule.”39 Similarly,
the existence or absence of class-type “protection” would
necessarily involve “diversities and conflicts” of a type
of that Congress adopted the Act to prevent.40 Moreover,
the majority here—like the Board in D. R. Horton—not
only adopts an interpretation of the Act that relates to
non-NLRA claims, the class-type procedures applied by
Federal courts are inapplicable to the Board’s own pro-
ceedings.41 The Board has no special competence re-
tions Commission, 427 U.S. 132, 149–150 (1976) (holding that States
and the NLRB cannot regulate peaceful employee action not addressed
in the NLRA). See generally Robert A. Gorman & Matthew W. Finkin,
Basic Text On Labor Law: Unionization and Collective Bargaining
1078–1110 (2d ed. 2004).
36 Garner v. Teamsters Local 776, 346 U.S. at 490.
37 For example, Rule 23 “opt-out” class proceedings are potentially
available under Title VII, which pertains to sex, race, national origin,
and religious discrimination claims, among others. By comparison,
“collective action” FLSA claims—if deemed appropriate—involve
“opt-in” notification by employee-claimants, but many courts have held
there is no substantive right to proceed collectively under the FLSA. D.
R. Horton, Inc. v. NLRB, 737 F.3d at 357–358 (citing Carter v. Coun-
trywide Credit Industries, Inc., 362 F.3d 294, 298 (5th Cir. 2004);
Adkins v. Labor Ready, Inc., 303 F.3d 496, 506 (4th Cir. 2002); Ku-
ehner v. Dickinson & Co., 84 F.3d 316, 319–320 (9th Cir. 1996)). No
substantive right to class procedures has been deemed to exist under the
ADEA, even though the statute provides for class procedures. D. R.
Horton, Inc. v. NLRB, 737 F.3d at 357 (citing Gilmer v. Inter-
state/Johnson Lane Corp., 500 U.S. 20, 32 (1991)).
38 Again, the Supreme Court has recognized that “class” treatment—
even in arbitration—necessitates “additional and different procedures”
and involves “higher stakes” because the adjudication is binding on
“absent parties,” and this “makes the process slower, more costly, and
more likely to generate procedural morass than final judgment.” AT&T
Mobility LLC v. Concepcion, supra, 131 S.Ct. at 1750–1751. The
Court also indicated that questions about the appropriateness of class-
type treatment require independent consideration. Id. (“[B]efore an
arbitrator may decide the merits of a claim in classwide procedures, he
must first decide, for example, whether the class itself may be certified,
whether the named parties are sufficiently representative and typical,
and how discovery for the class should be conducted.”).
39 San Diego Building Trades Council v. Garmon, 359 U.S. at 239.
40 Garner v. Teamsters Local 776, 346 U.S. at 490.
41 NLRB proceedings are governed by the Board’s own Rules and
Regulations—not the Federal Rules—and many procedural require-
ments for representation and unfair labor practice proceedings are set
forth in the Act itself. See Sec. 3(b) (regarding representation proceed-
ings delegated to Regional Directors subject to requests for Board
garding class-type procedures, and our determinations in
this area almost certainly would not be afforded defer-
ence.42
Finally, I believe it is unreasonable to suggest that
Congress authorized the NLRB, based on a “guarantee”
supposedly incorporated into Section 7, to intercede and
invalidate every “class” waiver agreement governing
non-NLRA rights when (i) class-type treatment is not
even available under some non-NLRA statutes, (ii) class-
type treatment, even if potentially available, would be
denied in many cases based on their particular facts,43
(iii) the Board’s invalidation of “class” waivers would be
redundant if the non-NLRA court or agency would like-
wise have invalidated the waiver, (iv) the Board’s invali-
dation of other “class” waivers would be contrary to
those courts or agencies that would give effect to such
waivers, (v) the Board’s invalidation of “class” waivers
can effectively be undone, in every case, by any individ-
ual’s election either to “opt out” (as to a FRCP Rule 23
opt-out class) or not to opt in (as to an FLSA collective
action), and (vi) non-NLRA laws obviously have their
own enforcement machinery authorized or approved by
Congress or, in the case of state or local laws, by other
legislative bodies, and the courts and agencies responsi-
ble for enforcing these laws have their own procedural
rules.
The instant case vividly demonstrates the unworkable
nature of the regulatory scheme contemplated by my
colleagues in the majority. First, the majority finds Re-
spondent violated the NLRA by filing a meritorious mo-
review), 4(a) (handling of hearings and drafting of opinions), 6 (author-
izing the Board to adopt rules and regulations as necessary to carry out
the provisions of the Act), 9 (requirements applicable to representation
hearings), and 10 (requirements applicable to unfair labor practice
proceedings).
42 To say that courts would almost certainly not give deference to the
Board’s determinations in this area would be an understatement. As
described in Member Johnson’s separate opinion in the instant case, the
Board’s reasoning in D. R. Horton—which is the basis for the majori-
ty’s decision here—has been rejected, nearly without exception, by
dozens of courts.
43 Parties devote substantial resources to litigating whether class cer-
tification, “collective” claims and the joinder of multiple parties in a
single proceeding are appropriate (to cite just three examples), and
courts often find they are not. See, e.g., Wal-Mart Stores, Inc. v.
Dukes, supra (Supreme Court overturns certification of class of current
and former female employees allegedly discriminated against based on
sex in violation of Title VII); Myers v. Hertz Corp., 624 F.3d 537, 547–
553 (2d Cir. 2010) (affirming district court’s denial of employee’s
motion to certify an opt-in collective action on her FLSA claim, where
it was not shown that “common questions would predominate over
individual ones”); Edwards-Bennett v. H. Lee Moffitt Cancer & Re-
search Institute, Inc., 2013 WL 3197041 (M.D. Fla. 2013) (denying
employees’ request for joinder of their race discrimination claims
where “the sets of facts undergirding each claim [were] mutually exclu-
sive”). See also fn. 38, supra.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802
tion that the district court granted pursuant to the FAA, a
statute that confers jurisdiction on the court, not the
NLRB. Second, the majority likewise orders Respondent
to pay the plaintiffs’ attorneys fees regarding an issue as
to which the plaintiffs lost and the Respondent pre-
vailed.44 Third, existing case law demonstrates that other
employers and employees litigate similar disputes re-
garding “class” waiver agreements in countless non-
NLRA court actions throughout the country, and many
courts are likely to enforce such waiver agreements. The
Board cannot impose a “single, uniform, national rule”45
regarding these issues unless there is a parallel NLRB
proceeding, pertaining to every case in which a “class”
waiver is enforced, so the Board can adjudicate and im-
pose in these other cases the same remedies being formu-
lated here.
Only one thing in such a scenario is certain: it could
never happen. The Board cannot exercise jurisdiction
over any dispute unless a charge is filed, and many liti-
gants (for numerous reasons) will predictably fail to file
NLRB charges regarding the litigation of non-NLRA
claims.46 The Board has no right to “party” status in
non-NLRA cases, and non-NLRA statutes obviously vest
jurisdiction in the appropriate court or agency, not the
NLRB. Moreover, the Board only has jurisdiction over
certain employers and groups of employees, which con-
trasts with the very different populations of employers
and employees who are litigants in non-NLRA court cas-
es. For example, the NLRA does not apply to railroad or
airline employers and employees (who are subject to the
Railway Labor Act), and the NLRA’s protection ex-
cludes managers and supervisors. Therefore, even if
there were parallel Board proceedings regarding every
court case involving a disputed “class” waiver agree-
ment, the Board-ordered “remedy,” if somehow imposed
on the non-NLRA courts and agencies, would produce a
patchwork where (i) some plaintiffs and defendants
would have non-NLRA procedural issues dictated by the
NLRB, and (ii) these same procedural issues for other
plaintiffs and defendants—even in the same case—
would be adjudicated by the non-NLRA court or agency.
44 I believe the majority’s award of attorneys’ fees here presents in-
dependent problems that render such an award inappropriate. See part
D below.
45 San Diego Building Trades Council v. Garmon, 359 U.S. at 239.
46 Sec. 10(b) makes clear that the Board may only issue complaints
and hold hearings regarding unfair labor practices “[w]henever it is
charged that any person has engaged in or is engaging in any such
unfair labor practice” (emphasis added). See also National Assn. of
Manufacturers v. NLRB, 717 F.3d 947, 951 (D.C. Cir. 2013) (Board
cannot enforce the Act unless “outside actors” file an unfair labor prac-
tice charge, and “neither the Board nor its agents are authorized to
institute charges sua sponte”) (quoting Robert A. Gorman & Matthew
W. Finkin, Basic Text on Labor Law, at 10 (2d ed. 2004)).
Nothing in the Act suggests that Congress authorized
the Board to engage in these types of haphazard, redun-
dant and self-contradictory enforcement efforts regarding
non-NLRA laws that, substantively and procedurally, are
enforced by courts and agencies other than the NLRB.
Sheridan v. U.S., 487 U.S. 392, 402 fn. 7 (1988)
(“[C]ourts should strive to avoid attributing absurd de-
signs to Congress, particularly when the language of the
statute and its legislative history provide little support for
the proffered, counterintuitive reading.”); U.S. v. Ameri-
can Trucking Assns., Inc., 310 U.S. 534, 543 (1940)
(even a statute’s plain meaning can be disregarded when
it leads to “absurd or futile results” or is “plainly at vari-
ance with the policy of the legislation as a whole”) (foot-
note and citation omitted).47
Though well-intentioned, the majority’s finding—like
the decision in D. R. Horton—is incompatible with the
Board’s statutory duty to accommodate and to avoid un-
dermining Federal laws other than the NLRA. In some
respects, the majority’s position here resembles its deci-
sion in Fresh & Easy, where the majority found that a
single employee’s invocation of a statutory right was
inherently for “mutual aid or protection.” In my partial
dissent, I noted that the Act’s “protection”—if applied
more broadly than Congress intended or the language of
the Act reasonably allows—would delay or obstruct em-
ployer investigations regarding non-NLRA complaints
and inhibit the vigor with which they can be carried out.
Here, as there, what the Supreme Court stated more than
70 years ago continues to be relevant:

[T]he Board has not been commissioned to effectuate
the policies of the [Act] so single-mindedly that it may
wholly ignore other and equally important Congres-
sional objectives. Frequently the entire scope of Con-
gressional purpose calls for careful accommodation of
one statutory scheme to another, and it is not too much
to demand of an administrative body that it undertake
47 In my view, the majority’s position here is weakened, not
strengthened, by the statement that the majority is not “guaranteeing
class treatment” but instead only insists that employees have a right to
“pursue joint, class, or collective claims” (emphasis in original). It is
true that D. R. Horton conceded “there is no Section 7 right to class
certification.” 357 NLRB 2277, 2286 (2012). However, the majority
here—like the Board in D. R. Horton—improperly fails to recognize
that such an observation effectively concludes the Board’s work. There
cannot be a violation of Sec. 8(a)(1) unless the employer interferes
with, restrains, or coerces employees “in the exercise of the rights
guaranteed in section 7” (emphasis added). As explained in the text, it
is all the more implausible to suggest Congress vested the Board with
authority to intercede and invalidate all kinds of “class waiver” agree-
ments when employees will ultimately be found to have no “right to
class certification” either under Sec. 7 (D. R. Horton, supra) or under
the non-NLRA rules and statutes that govern a particular claim.

MURPHY OIL USA, INC. 803
this accommodation without excessive emphasis upon
its immediate task.48
C. The NLRA Expressly Protects the Right of
“Individual” Employees—Whether or not
Represented—to “Adjust” Non-NLRA
Disputes Individually
I disagree with my colleagues’ invalidation of Re-
spondent’s “class” waiver agreement for another reason:
Section 9(a) of the Act explicitly protects the right of
every employee as an “individual” to “present” and to
“adjust” grievances “at any time.”49 The Act’s legisla-
tive history shows that Congress intended to preserve
every individual employee’s right to “adjust” the sub-
stance of any employment-related dispute with his or her
employer. This guarantee clearly encompasses agree-
ments as to procedures that will govern the adjustment of
grievances, including agreements to waive class-type
treatment, which does not even rise to the level of a sub-
stantive right. See D. R. Horton, Inc. v. NLRB, 737 F.3d
at 362 (“The use of class action procedures . . . is not a
substantive right.”) (citations omitted); Deposit Guaranty
National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a proce-
dural right only, ancillary to the litigation of substantive
claims.”). This aspect of Section 9(a) is reinforced by
Section 7 of the Act, which protects each employee’s
right to “refrain from” exercising the collective rights
enumerated in Section 7.50 Thus, Section 9(a) and Sec-
tion 7 make the same point: even if the Act created a
substantive right to class-type adjudication of non-NLRA
workplace disputes, employees have a protected right not
to have their claims pursued on a classwide basis and,
48 Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942) (empha-
sis added); see also Hoffman Plastic Compounds, Inc. v. NLRB, 535
U.S. 137, 147 (2002) (“[W]here the Board’s chosen remedy trenches
upon a federal statute or policy outside the Board’s competence to
administer, the Board’s remedy may be required to yield.”); Can-Am
Plumbing, Inc. v. NLRB, 321 F.3d 145, 153 (D.C. Cir. 2003) (“[T]he
Board . . . is obligated to defer to other tribunals where its jurisdiction
under the Act collides with a statute over which it has no expertise.”);
New York Shipping Assn. v. Federal Maritime Commission, 854 F.2d
1338, 1367 (D.C. Cir. 1988) (“[T]he agency must fully enforce the
requirements of its own statute, but must do so, insofar as possible, in a
manner that minimizes the impact of its actions on the policies of the
other statute.”), cert. denied 488 U.S. 1041 (1989); Electrical Workers
Local 48 (Kingston Constructors), 332 NLRB 1492, 1501 (2000)
(Board cannot adopt interpretation “announcing, in effect, that the
NLRA trumps all other Federal statutes”), supplemented 333 NLRB
963 (2001), enfd. 345 F.3d 1049 (9th Cir. 2003)). Cf. Meyers II, 281
NLRB at 888 (“Although it is our duty to construe the labor laws so as
to accommodate the purposes of other Federal laws . . . this is quite a
different matter from taking it upon ourselves to assist in the enforce-
ment of other statutes” [citations omitted].).
49 Sec. 9(a) (emphasis added).
50 Sec. 7 (emphasis added).
instead, to agree such claims will be resolved on an “in-
dividual” basis. And employers correspondingly do not
commit an unfair labor practice by agreeing to such indi-
vidual adjustments.
Section 9(a) plays a central role in the NLRA because
Congress there established two other core concepts—
“exclusive” representation and “majority” support—that
provide the foundation for all the Act’s provisions re-
garding union representation. Section 9(a) in its entirety
states:

Representatives designated or selected for the purposes
of collective bargaining by the majority of the employ-
ees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such
unit for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, or other
conditions of employment: Provided, That any individ-
ual employee or a group of employees shall have the
right at any time to present grievances to their employ-
er and to have such grievances adjusted, without the
intervention of the bargaining representative, as long as
the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in ef-
fect: Provided further, That the bargaining representa-
tive has been given opportunity to be present at such
adjustment.51

Several aspects of Section 9(a) are noteworthy. First,
it explicitly preserves the right of every “individual em-
ployee” to “adjust” grievances, even though Section 9(a)
otherwise provides for “exclusive” union representation
of all employees in the bargaining unit (provided the
union has majority support).52 Second, Section 9(a) in-
dicates that, even when there is a certified or recognized
union, every “individual” still has the right to adjust
grievances “without the intervention of the bargaining
representative” (provided the adjustment is not contrary
51 Id. (emphasis added).
52 The Supreme Court has stated that the Act, as reflected in Sec.
9(a), gives effect to “the principle of exclusive representation tempered
by safeguards for the protection of minority interests.” Emporium
Capwell Co. v. Western Addition, 420 U.S. 50, 65 (1975). Significant-
ly, in Emporium Capwell, the Supreme Court rejected arguments by the
employee-plaintiffs that NLRB protection was necessary in relation to
their efforts to address race discrimination issues that were governed by
Title VII. The Court stated: “Whatever its factual merit, this argument
is properly addressed to the Congress, and not to this Court or the
NLRB. In order to hold that employer conduct violates § 8(a)(1) of the
NLRA because it violates § 704(a) of Title VII, we would have to over-
ride a host of consciously made decisions well within the exclusive
competence of the Legislature. This, obviously, we cannot do.” Id. at
73 (emphasis added; footnote omitted). The same admonition applies
with equal force to the Board’s “class” waiver ruling in the instant case
and in D. R. Horton.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804
to any collective-bargaining agreement, and provided the
union has been given the opportunity to be present). Id.
(emphasis added).
Section 9(a)’s legislative history reveals this structure
was no accident. And, more importantly, Section 9(a)
and its legislative history squarely contradict the majori-
ty’s finding here—and in D. R. Horton—that Congress
prohibited employees from agreeing to pursue claims on
an “individual” basis or empowered the Board to insist
that claims be addressed on a “group” basis. To the con-
trary, both when the Act was originally adopted in 1935
and when it was amended in 1947, Congress intended
that every employee could pursue and resolve his or her
claims on an “individual” basis, and Congress gave eve-
ry employee the right, as an “individual,” to reach
agreements “at any time” with the employer regarding
such adjustments.
The original version of the Wagner Act legislation, as
reported by the Senate Labor Committee in 1934, stated
that “nothing in this Act shall be construed to prohibit an
employer from discussing grievances with an employee
or groups of employe[e]s at any time.”53 When Senator
Wagner’s substitute bill was introduced in 1935, the sub-
stitute bill stated: “[A]ny individual employee or group
of employees shall have the right at any time to present
grievances to their employer through representatives of
their own choosing.”54
Significantly, when the substitute bill was reported by
the Senate Labor Committee—and in the versions adopt-
ed by the Senate and reported out of Committee in the
House—the “individual employee” language deleted the
phrase “through representatives of their own choosing.”
Therefore, the substitute legislation made reference to the
right of employees—individually or as a group—to pre-
sent their own grievances directly to the employer:
“[A]ny individual employee or group of employees shall
have the right at any time to present grievances to their
employer.”55 This language remained unchanged in the
53 S. 2926, 73d Cong. § 10(a) (1934), reprinted in 1 NLRB, Legisla-
tive History of the National Labor Relations Act of 1935, at 1095
(1935) (emphasis added). Hereinafter the NLRA’s compiled legislative
history is referred to as “__ NLRA Hist. __.”
54 S. 1958, 74th Cong. § 9(a) (1935) (as introduced), reprinted in 1
NLRA Hist. 1300 (emphasis added).
55 S. 1958, 74th Cong. § 9(a) (1935) (as reported by the Senate Labor
Committee), reprinted in 2 NLRA Hist. 2291 (emphasis added); H.R.
7937, 74th Cong. § 9(a) (1935) (companion bill in House), reprinted in
2 NLRA Hist. 2850; H.R. 7978, 74th Cong. § 9(a) (1935) (companion
bill in House), reprinted in 2 NLRA Hist. 2862; S. 1958, 74th Cong. §
9(a) (1935) (as adopted by the Senate), reprinted in 2 NLRA Hist.
2891; H.R. 7978, 74th Cong. § 9(a) (1935) (as reported by the House
Committee on Education and Labor), reprinted in 2 NLRA Hist. 2903.
See also S. Rep. 74-573, at 13, reprinted in 2 NLRA Hist. 2313 (“[T]he
final version of the Wagner Act adopted in 1935. As
enacted, Section 9(a) stated in relevant part: “any indi-
vidual employee or group of employees shall have the
right at any time to present grievances to their employ-
er.”56
The NLRA, in 1935, only referred to the right of em-
ployees to “present grievances” on an “individual” ba-
sis.57 However, the legislative history indicates that
Congress contemplated this would include the right to
present and resolve grievances on an “individual” basis.
To this effect, the House report described the “individual
employee” language as an important exception to the
concept of “majority rule,” as follows:

Since the agreement made will apply to all, the minori-
ty group and individual workers are given all the ad-
vantages of united action. And they are given added
protection in various respects. First, the proviso to sec-
tion 9 (a) expressly states that “any individual employ-
ee or a group of employees shall have the right at any
time to present grievances to their employer.” And the
majority rule does not preclude adjustment in individu-
al cases of matters outside the scope of the basic
agreement.58

Notwithstanding the above indication that the Act
“[did] not preclude adjustment in individual cases” (id.),
the Board narrowly interpreted 9(a)’s language permit-
ting employees to “present” grievances. Thus, the Board
in several cases concluded that the Act prohibited the
adjustment of disputes by individuals, as opposed to the
bargaining representative.59 This prompted Congress, as
part of the Taft-Hartley amendments adopted in 1947, to
expand the “individual employee” language in Section
9(a).60 Based on these changes, Section 9(a) now states
that “any individual employee or a group of employees
shall have the right at any time to present grievances to
bill preserves at all times the right of any individual employee or group
of employees to present grievances to their employer.”).
56 49 Stat. 449, § 9(a) (1935), reprinted in 2 NLRA Hist. 3274 (em-
phasis added).
57 Id. (emphasis added).
58 H.R. Rep. 74-972, at 19 (1935), reprinted in 2 NLRA Hist. 2929
(emphasis added).
59 See, e.g., North American Aviation, Inc., 44 NLRB 604, 605–606
(1942), enf. denied 136 F.2d 898 (9th Cir. 1943); Hughes Tool Co., 56
NLRB 981, 982–983 (1944), enfd. as modified 147 F.2d 69 (5th Cir.
1945).
60 See, e.g., 61 Stat. 136, § 101 (1947) (amending Sec. 9(a)), reprint-
ed in 1 NLRB, Legislative History of the Labor Management Relations
Act (LMRA), 1947, at 1 (1948). Hereinafter the LMRA’s compiled
legislative history is referred to as “__ LMRA Hist. __.” See also S.
1126, 80th Cong., Title I, § 9(a) (1947), reprinted in 1 LMRA Hist.
116–117; H.R. 3020, 80th Cong., Title I, § 9(a) (1947), reprinted in 1
LMRA Hist. 244.

MURPHY OIL USA, INC. 805
their employer and to have such grievances adjusted,
without the intervention of the bargaining representa-
tive.”61
The House report explained that Section 9(a)’s amend-
ed language was intended to ensure the Board gave “full
effect” to the “individual employee” language set forth in
the original Act:

Like the present act, this clause of the amended act
would make representatives chosen by the majority of
the employees in a bargaining unit the exclusive repre-
sentative of all the employees for the purposes of col-
lective bargaining. The present act provides that any
individual employee or group of employees may “pre-
sent grievances to their employer.” Putting a strange
construction upon this language, the Labor Board says
that while employees may “present” grievances in per-
son, the representative has the right to take over the
grievances. The present bill permits the employees and
their employer to settle the grievances, but only if the
settlement is not inconsistent with the terms of any col-
lective-bargaining agreement then in effect. The provi-
so is thus given its obvious and proper meaning.62

Along similar lines, the Senate report stated:

The revisions of section 9 relating to representation
cases make a number of important changes in existing
law. An amendment contained in the revised proviso
for section 9 (a) clarifies the right of individual em-
ployees or groups of employees to present grievances.
The Board has not given full effect to this right as de-
fined in the present statute since it has adopted a doc-
trine that if there is a bargaining representative he must
be consulted at every stage of the grievance procedure,
even though the individual employee might prefer to
exercise his right to confer with his employer alone. . . .
The revised language would make it clear that the em-
ployee’s right to present grievances exists independent-
ly of the rights of the bargaining representative, if the
bargaining representative has been given an opportuni-
ty to be present at the adjustment, unless the adjustment
is contrary to the terms of the collective-bargaining
agreement then in effect.63
61 Id. The Taft-Hartley amendments included additional language in
Sec. 9(a) requiring that any adjustment be “not inconsistent with the
terms of a collective-bargaining contract or agreement then in effect”
and that “the bargaining representative has been given opportunity to be
present at such adjustment.” Id.
62 H.R. Rep. 80-245, at 34, reprinted in 1 LMRA Hist. 325 (empha-
sis added).
63 S. Rep. 80-105, at 24 (1947), reprinted in 1 LMRA Hist. 320 (em-
phasis added). See also H.R. Rep. 80-510, at 46 (1947) (Conference
report), reprinted in 1 LMRA Hist. 550 (“[T]his provision has not been

As reflected in Section 9(a) and its legislative history,
Congress guaranteed every employee’s right “at any
time,” as an “individual,” to “adjust” the merits of any
dispute. Section 9(a) accomplishes this by safeguarding
“from charges of violation of the act the employer who
voluntarily processed employee grievances at the behest
of the individual employee.”64 This “individual” right is
available to represented and unrepresented employees
alike. This “individual” right of employees to “adjust”
the merits of any dispute “at any time” necessarily en-
compasses the right of employees to agree with their
employer, on an “individual” basis, regarding non-
substantive procedures governing the resolution of such
disputes. D. R. Horton, Inc. v. NLRB, 737 F.3d at 362;
Deposit Guaranty National Bank v. Roper, 445 U.S. at
332.65 As noted previously, this right under Section 9(a)
is reinforced by Section 7, which protects the right of
employees to “refrain from” engaging in activities that
have statutory protection. Taken together, Section 9(a)
and Section 7 compel a conclusion that Congress intend-
ed for employees and employers—and not the NLRB—
to choose for themselves whether to pursue non-NLRA
disputes on a “collective” versus “individual” basis.
In D. R. Horton, the Board contrasted employee
“class” waivers (which the majority finds invalid here, as
did the Board in D. R. Horton) with union-negotiated
agreements barring employees from filing non-NLRA
court claims (which the Supreme Court declared valid in
construed by the Board as authorizing the employer to settle grievances
thus presented. Both the House bill and the Senate amendment amend-
ed section 9 (a) of the existing law to specifically authorize employers
to settle grievances presented by individual employees or groups of
employees, so long as the settlement is not inconsistent with any collec-
tive bargaining contract in effect.”).
64 Black-Clawson Co. v. Machinists, 313 F.2d 179, 185 (2d Cir.
1962).
65 Respondent’s “class” waiver bears no resemblance to agreements
that are unenforceable because they purport to defeat or negate rights
afforded under the Act. For example, in National Licorice Co. v.
NLRB, 309 U.S. 350 (1940), cited by the majority here, the employer
refused to bargain with a union that had been designated as the repre-
sentative by more than 75 percent of the work force, and the employer
then secured individual agreements where employees “relinquished”
the right to have a “signed agreement with any union.” Id. at 355. On
these facts it was self-evident that the individual agreements were “pro-
cured through violation of the Act” and were a “continuing means of
violating it.” Id. at 365. Along similar lines, Sec. 3(a) of the Norris-
LaGuardia Act prohibits private agreements (commonly known as
“yellow-dog contracts”) where an employee “undertakes or promises
not to join, become, or remain a member of any labor organization”
(cited in D. R. Horton, 357 NLRB 2277, at 2282, 2287). See also J.I.
Case Co. v. NLRB, 321 U.S. 332 (1944) (cited in D. R. Horton, supra,
at 2280). Unlike these examples, Respondent’s “class” waiver has
virtually no impact on rights directly afforded under the NLRA. Ra-
ther, the waiver focuses exclusively on non-NLRA claims and com-
plaints, and it deals exclusively with nonsubstantive procedural issues.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 806
14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009)). The
Board suggested that individual employees were inher-
ently incapable of entering into agreements waiving
class-type procedures affecting non-NLRA claims, and
the Board stated that Section 7 rights could be waived
only by “a properly certified or recognized union” be-
cause a union-negotiated agreement “stems from an ex-
ercise of Section 7 rights: the collective-bargaining pro-
cess.” D. R. Horton, supra, at 2286 (emphasis in origi-
nal).
In my view, these observations in D. R. Horton are
fundamentally flawed. Again, Section 7 protects not
only employees who “bargain collectively through repre-
sentatives of their own choosing,” but also employees
who exercise the “right to refrain from any or all of such
activities.” The Supreme Court in a long line of cases
also has upheld the enforceability of individual employ-
ment agreements regarding mandatory arbitration of non-
NLRA claims. See, e.g., Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20 (1991); Circuit City Stores, Inc.
v. Adams, 532 U.S. 105 (2001). Consequently, the Act
does not render individual employee agreements inher-
ently suspect or unenforceable, particularly when the
agreements relate exclusively to non-NLRA legal rights.
In this context, the Supreme Court held in 14 Penn Plaza
LLC v. Pyett: “Nothing in the law suggests a distinction
between the status of arbitration agreements signed by an
individual employee and those agreed to by a union rep-
resentative.” 556 U.S. at 258.
Furthermore, Section 9(a) and its legislative history—
as described above—contradict the fundamental premise
of D. R. Horton and the majority’s reasoning here. Re-
garding the procedures applicable to non-NLRA claims
and disputes, the Act does not favor or disfavor “individ-
ual” versus class-type resolutions. If anything, the Act is
silent with respect to class-type procedures, but it specif-
ically protects “individual” adjustments, even by repre-
sented employees that have a bargaining representative.
This is directly provided for in Section 9(a), and it was
the specific focus of legislative attention by Congress
both when the Act was adopted in 1935 and when it was
amended in 1947.66
66 I respectfully disagree with the majority’s suggestion that the pro-
tection afforded to “individual” adjustments under Sec. 9(a) has no
application to agreements entered into between employees and an em-
ployer at the commencement of their employment relationship. In my
view, two considerations negate arguments that such agreements are
unlawful because, as characterized by the majority, they are a condition
of employment. First, there is virtually no support for the proposition
that agreements entered into at the commencement of employment are
thereby invalid. To the contrary, the Supreme Court has squarely re-
jected the view that arbitration agreements are invalid on such grounds.
Gilmer, above, 500 U.S. at 33. Countless other courts have enforced
Similar considerations warrant a conclusion that the
majority here improperly declares unlawful Respond-
ent’s motion to dismiss that was filed (and, indeed,
granted by the court) in the FLSA proceeding initiated by
the Charging Party. I believe my colleagues’ finding of
illegality infringes on Respondent’s constitutional rights
under the Petition Clause of the First Amendment. See
Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731
(1983); BE & K Construction Co., 536 U.S. 516 (2002).
Although it is true that the Board does not run afoul of
First Amendment rights if it invalidates litigation efforts
that have “an objective that is illegal under federal law,”
Bill Johnson’s Restaurants, 461 U.S. at 737 fn. 5, the
above discussion demonstrates, in my view, that Re-
spondent’s “class” waiver does not contravene any right
that is afforded under Section 7. Moreover, Section 9(a)
establishes that the Charging Party and other employees
were privileged, under the Act, to agree on the “individu-
al” adjustment of non-NLRA claims and complaints.
For these reasons, this case gives rise to the very signifi-
cant concerns expressed by the Supreme Court about the
First Amendment right to petition the government in le-
gal proceedings. In my view, therefore, Respondent’s
“well-founded” motion to dismiss based on the class
waiver “may not be enjoined as an unfair labor practice,”
and I believe my colleagues’ finding infringes on Re-
spondent’s “First Amendment right to petition the Gov-
ernment for redress of grievances.” Bill Johnson’s Res-
taurant, 461 U.S. at 741, 743.
D. The Federal Arbitration Act Precludes the
Board from Invalidating “Class” Waivers Contained
employment agreements, in part because the commencement of em-
ployment constitutes adequate consideration for the employee com-
mitments contained in such agreements. Koveleskie v. SBC Capital
Markets, Inc., 167 F.3d 361, 366–367 (7th Cir. 1999) (rejecting, “as
have numerous courts,” plaintiff’s argument that contract was unen-
forceable because it was “a condition of her employment”), cert. denied
528 U.S. 811 (1999); Cubic Corp. v. Marty, 185 Cal. App. 3d 438, 448
(Cal. Ct. App. 1986) (“[T]he Agreement was a condition of employ-
ment and . . . the employment was adequate consideration for the
Agreement.”). Second, the majority’s position is expressly contradict-
ed by Sec. 9(a), which protects the right of employees and employers
“at any time” to enter into agreements regarding “individual” adjust-
ments (emphasis added). This language precludes the majority’s prem-
ise that “individual” agreements, under Sec. 9(a), may only be lawfully
entered into at some times but not others.
Nor do I agree with the majority’s suggestion that Sec. 9(a) only ap-
plies when there is union representation and that any right conferred by
the proviso to Sec. 9(a) “exists largely at the sufferance of the union.”
Sec. 9(a) and its legislative history are precisely to the contrary. Sec.
9(a) confers broad rights on employees, distinct from any rights en-
joyed by a union, and the overt purpose of Sec. 9(a)’s proviso is to
ensure that union representation does not supplant the right to adjust
grievances on an “individual” basis “at any time.”

MURPHY OIL USA, INC. 807
in an Employment Agreement that Provides
for Arbitration
The above points relate to the scope of Section 7 in re-
lation to non-NLRA claims and complaints, without even
considering the treatment one must afford arbitration
agreements under the FAA. See, e.g., Circuit City
Stores, Inc. v. Adams, supra. As to this issue, I agree
with part III of Member Johnson’s dissenting opinion
and the dozens of court cases that have refused to apply
D. R. Horton, supra, and have enforced individual waiv-
ers of class-type claims in the context of mandatory arbi-
tration agreements.
E. The Remedies Ordered in this Case are
not Appropriate
For the above reasons, I believe the majority’s remedi-
al order is not appropriate. However, some comment is
warranted regarding the required payment of attorneys’
fees incurred in opposition to the Respondent’s motion to
dismiss filed in the FLSA action initiated by the Charg-
ing Party.
The Supreme Court has indicated that the Board may
order reimbursement of attorneys’ fees if an employer
violates the Act based on a non-NLRA lawsuit that has a
“retaliatory motive” and lacks any “reasonable basis” in
the non-NLRA proceeding.67 In the instant case, howev-
er, neither characterization fairly describes the Respond-
ent’s motion to dismiss.
As noted in parts B and C above, the Act and its legis-
lative history make it unreasonable to conclude that the
Respondent’s enforcement of an agreement regarding
class-type procedures constitutes a retaliatory motive
(i.e., hostility based on the exercise of NLRA-protected
rights).
It is even less defensible to suggest that the Respond-
ent lacked a “reasonable basis” for filing a motion to
dismiss in the FLSA proceedings to enforce the class
waiver agreement entered into by the plaintiffs. Here, it
is important to recognize that the Respondent filed a
meritorious motion that the district court granted pursu-
ant to the FLSA (a statute that vests the courts, and not
the NLRB, with jurisdiction over its enforcement). In
other words, the majority orders the Respondent to pay
the plaintiffs’ attorneys’ fees regarding an FLSA issue as
to which the plaintiffs lost, and as to which the Respond-
ent prevailed. As a general matter, any attorneys’ fee
award is a departure from the “American rule,” which
generally provides that parties in legal proceedings are
not entitled to a payment of their attorneys fees.68 How-
67 See Bill Johnson’s Restaurant, 461 U.S. at 749.
68 Litigants under the “American rule” are usually only permitted to
receive payment of their attorneys’ fees if the relevant statute expressly
ever, the majority here not only awards a recovery of
attorneys’ fees, the Board is awarding fees in favor of
non-prevailing parties in a proceeding over which the
Board has no jurisdiction whatsoever. There is not a hint
in the Act or its legislative history that Congress intended
to vest this type of remedial authority in the Board.
The majority’s fee-shifting award also disregards the
fact—as described in Member Johnson’s separate opin-
ion—that the overwhelming majority of courts consider-
ing it have rejected the Board’s position on “class” action
waivers. Indeed, D. R. Horton itself was denied en-
forcement by the Court of Appeals for the Fifth Circuit.
D. R. Horton, Inc. v. NLRB, supra. This makes it all the
more evident that Respondent’s meritorious motion to
dismiss was not lacking any “reasonable basis,” which is
a prerequisite to having an NLRB-imposed remedy for
retaliatory litigation.
In short, the majority orders Respondent to reimburse
nonprevailing parties for attorneys’ fees resulting from
(i) the Respondent’s filing of a meritorious motion, (ii)
that the district court granted, (iii) consistent with dozens
of other court decisions, (iv) in a legal proceeding where
the Board is not a party and has no jurisdiction; and
(v) where the singular case relied upon by the Board was
itself denied enforcement by the court of appeals. D. R.
Horton, Inc. v. NLRB, 737 F.3d at 362. I believe these
considerations demonstrate, at a minimum, that the ma-
jority’s attorneys’ fee award is unwarranted in the cir-
cumstances presented here.
Conclusion
For the reasons described above, I respectfully dissent.

MEMBER JOHNSON, dissenting.
In today’s decision, the Board punishes Murphy Oil
for attempting to enforce an arbitration agreement ac-
cording to its terms. Under the Federal Arbitration Act
(FAA), that result would be bad enough. But, in reality,
this case is about much more than that. It poses the un-
fortunate example of a Federal agency refusing to follow
the clear instructions of our nation’s Supreme Court on
provides for fee-shifting in favor of a prevailing party. The Court of
Appeals for the D.C. Circuit has held that the Board lacks fee-shifting
authority regarding its own proceedings. See Unbelievable, Inc. v.
NLRB, 118 F.3d 795, 806 (D.C. Cir. 1997). The Board is unable to
seek a recovery of its own fees from litigants before the Board. Repub-
lic Steel Corp. v. NLRB, 311 U.S. 7, 12–13 (1940) (Board lacks authori-
ty to require “payments to the Federal, State, County, or other govern-
ments” to redress “an injury to the public”). Moreover, the Board has a
well-established track record of opposing petitions seeking a recovery
of attorneys’ fees from the Board pursuant to the Equal Access to Jus-
tice Act. Camelot Terrace, 357 NLRB 1934, 1944 (2011) (Member
Hayes, dissenting); Raley’s, 348 NLRB 382, 388 (2006); Austin Fire
Equipment, LLC, 360 NLRB 1176, 1179–1181 (Member Miscimarra,
dissenting).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 808
the interpretation of the statute entrusted to our charge,
and compounding that error by rejecting the Supreme
Court’s clear instructions on how to interpret the Federal
Arbitration Act, a statute where the Board possesses no
special authority or expertise. An agency should tread
carefully in areas outside its field of expertise, rather than
circumvent Supreme Court decisions that control funda-
mental issues of law in those areas. An agency should
also pay heed after a vast majority of courts express dis-
agreement with the agency’s attempted interpretation of
such laws outside its expertise. But here, the Board ma-
jority has done neither. Instead, with this decision, the
majority effectively ignores the opinions of nearly 40
Federal and State courts that, directly or indirectly, all
recognize the flaws in the Board’s use of a strained, tau-
tological reading of the National Labor Relations Act in
order to both override the Federal Arbitration Act and
ignore the commands of other Federal statutes. Instead,
the majority chooses to double down on a mistake that,
by now, is blatantly apparent.
The majority’s essential rationale for its choice boils
down to: “Our law is sui generis.” But the claim of
“we’re special” has never amounted to a reason to ignore
either the Supreme Court or the general expertise of the
judiciary in construing statutes, especially those outside
the National Labor Relations Act. Accordingly, I dissent
from the majority opinion.
Introduction
Many employers agree with their employees that em-
ployment-related disputes will be resolved through arbi-
tration. These agreements are increasingly common be-
cause, as the Supreme Court has recognized, they pro-
vide both employers and employees with a speedy, inex-
pensive, and informal method for resolving their dis-
putes.1 The “national policy favoring arbitration”— as
the Supreme Court has described it—plainly supports the
use of such agreements.2 In this case, the Respondent
implemented arbitration agreements for its work force
that require that all employment-related disputes be re-
solved through individual arbitration, rather than court
claims where a single employee purports to represent an
aggregate body of employees in a class, collective, or
representative action. When Charging Party Sheila Hob-
son and three other employees sued the Respondent for
alleged Fair Labor Standards Act (FLSA) violations in
Federal court in a collective action, the Respondent filed
1 Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S.
662, 685 (2010) (parties to arbitration agreement “realize the benefits
of private dispute resolution: lower costs, greater efficiency and speed,
and the ability to choose expert adjudicators to resolve specialized
disputes”).
2 Southland Corp. v. Keating, 465 U.S. 1, 10 (1984).
a motion to compel arbitration to enforce its agreement
with them.
Despite the established national policy favoring arbi-
tration, the Board has attempted to restrict the use of
such agreements in D. R. Horton3 2 years ago and now
again in today’s decision. Both opinions rest on the fol-
lowing faulty steps of logic: (1) employees have a “sub-
stantive” Section 7 right under the Act guaranteeing them
the use of class and collective action procedures—even
though such procedures originate and exist under com-
pletely different statutes—in order to collectively pursue
workplace grievances (with such grievances also arising
under other statutes); (2) any arbitration agreement that
restricts an individual employee from ultimately using
such class or collective litigation procedures interferes
with that Section 7 right, violates Section 8(a)(1) of the
Act, and is therefore void; and (3) this holding does not
conflict with the national policy favoring the enforce-
ment of arbitration agreements as written, embodied in
the Federal Arbitration Act (FAA), and elucidated by
repeated and recent decisions by the United States Su-
preme Court.4 The result of this unsound approach has
been near universal condemnation from the Federal and
State Courts.5
3 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344
(5th Cir. 2013), petition for rehearing denied __ F.3d __ (5th Cir.
2014).
4 9 U.S.C. § 1 et seq.
5 See, e.g., D. R. Horton v. NLRB, above; Owen v. Bristol Care, Inc.,
702 F.3d 1050, 1055 (8th Cir.2013); Sutherland v. Ernst & Young LLP,
726 F.3d 290 (2d Cir. 2013); Sylvester v. Wintrust Financial Corp., No.
12-C-01899, 2013 WL 5433593 (N.D. Ill. 2013); Delock v. Securitas
Security Services USA, 883 F.Supp.2d 784, 789 (E.D.Ark. 2012);
Morvant v. P.F. Chang’s China Bistro, Inc., 870 F.Supp.2d 831, 845
(N.D.Cal.2012); Jasso v. Money Mart Express Inc., 879 F.Supp.2d
1038, 1049 (N.D.Cal.2012); LaVoice v. UBS Financial Services No. 11
Civ. 2308(BSJ)(JLC), 2012 WL 124590, at *6 (S.D.N.Y. Jan. 13,
2012); Palmer v. Convergys Corp., No. 7:10-CV-145, 2012 WL
425256 (M.D.Ga. Feb. 9, 2012); Carey v. 24 Hour Fitness USA, Inc.,
2012 WL 4754726 (S.D.Tex. 2012); Cohen v. UBS Financial Services
2012 WL 6041634 (S.D.N.Y. 2012); Morris v. Ernst & Young LLP,
2013 WL 3460052, 20 Wage & Hour Cas.2d (BNA) 1807 (N.D.Cal.
2013); Lloyd v. J.P. Morgan Chase & Co., 2013 WL 4828588
(S.D.N.Y. 2013); Fimby-Christensen v. 24 Hour Fitness USA, Inc.,
2013 WL 6158040, 21 Wage & Hour Cas.2d (BNA) 1600 (N.D.Cal.
2013); Siy v. CashCall, Inc., 2014 WL 37879 (D.Nev. 2014); Cohn v.
Ritz Transportation Inc., 2014 WL 1577295 (D.Nev. 2014); Dixon v.
NBCUniversal Media, LLC, 947 F.Supp.2d 390 (S.D.N.Y. 2013); Hick-
ey v. Brinker International Payroll Co., L.P., 2014 WL 622883, 22
Wage & Hour Cas.2d (BNA) 248 (D.Colo. 2014); Zabelny v. CashCall,
Inc., 2014 WL 67638, 21 Wage & Hour Cas.2d (BNA) 1556 (D.Nev.
Jan 08, 2014); Ryan v. J.P. Morgan Chase & Co., 924 F.Supp.2d 559
(S.D.N.Y. Feb 21, 2013); Long v. BDP International Inc., 919
F.Supp.2d 832 (S.D.Tex. 2013); Green v. Zachry Industries Inc., ---
F.Supp.2d---2014 WL 1232413 (W.D.Va. 2014); Appelbaum v. Auto-
Nation Inc., 2014 WL 1396585 (C.D.Cal. 2014); Cunningham v.
Leslie’s Poolmart, Inc., 2013 WL 3233211 (C.D.Cal. 2013); Cilluffo v.
Central Refrigerated Services, 2012 WL 8523507 (C.D.Cal. 2012),

MURPHY OIL USA, INC. 809
This response is hardly surprising. Neither Section 7
nor Section 8(a)(1) reaches as broadly as the D. R. Hor-
ton opinion or the majority today claims. In short, Con-
gress has already and fully delimited the particular rules
for aggregating mass claims in litigation within Rule 23
of the Federal Rules of Civil Procedure (FRCP) dealing
with class actions generally and, for specific types of
claims under the Fair Labor Standards Act (FLSA) and
Age Discrimination Act, within their own unique set of
“collective action” rules. In other words, Congress was
the author, and the courts the chief interpreters, of all the
class and collective action rules about which the majority
so expansively opines here in today’s decision. And,
Congress and the courts, including our Supreme Court,
have repeatedly characterized or held that these rules are
procedural ones, not substantive rights or remedies. As
an agency inferior to Congress and the courts, we are
bound by that determination. We cannot simply “wave
the magic wand” of NLRA adjudication over this body
of law to declare what was formerly procedural to now
be substantive under our statute. Indeed, coming to the
correct conclusion that these rules are procedural should
be fairly easy for us, since these statutes are obvious
order clarified by 2012 WL 8523474 (C.D.Cal. 2012), reconsideration
denied by 2012 WL 8539805 (C.D.Cal. 2012), motion to certify appeal
denied by 2013 WL 3508069 (C.D.Cal. 2013); Spears v. Mid-America
Waffles, Inc., 2012 WL 2568157 (D.Kan. 2012); Torres v. United
Healthcare Services, 920 F.Supp.2d 368 (E.D.N.Y. 2013), appeal with-
drawn 13-707 (2d Cir. Feb 27, 2014); Iskanian v. CLS Transportation
Los Angeles, LLC, 59 Cal.4th 348, 327 P.3d 129, 173 Cal.Rptr.3d 289
(Cal. Jun 23, 2014); Nelsen v. Legacy Partners Residential, Inc., 207
Cal.App.4th 1115, 144 Cal.Rptr.3d 198 (1st Dist. Jul 18, 2012); Truly
Nolen of America v. Superior Court, 208 Cal.App.4th 487, 145
Cal.Rptr.3d 432, (4th Dist. Aug 09, 2012); Goss v. Ross Stores, Inc.,
2013 WL 5872277 (1st Dist. Oct 31, 2013); Outland v. Macy’s De-
partment Stores, Inc., 2013 WL 164419 (Cal.App. 1 Dist. Jan 16,
2013); Rivera v. Hilton Worldwide, Inc., 2013 WL 6230604 (4th Dist.
Nov 26, 2013); Teimouri v. Macy’s, Inc., 2013 WL 2006815 (4th Dist.
May 14, 2013); Reyes v. Liberman Broadcasting, Inc., 208 Cal.App.4th
1537, 146 Cal.Rptr.3d 616 (2nd Dist. 2012) , review granted and opin-
ion superseded by 288 P.3d 1287, 149 Cal.Rptr.3d 675 (Cal. 2012);
Leos v. Darden Restaurants, Inc., 217 Cal.App.4th 473, 158
Cal.Rptr.3d 384 (2nd. Dist. 2013), review granted and opinion super-
seded by 307 P.3d 878, 161 Cal.Rptr.3d 699 (Cal. 2013); Brown v.
Superior Court, 216 Cal.App.4th 1302, 157 Cal.Rptr.3d 779 (6th Dist.
2013), review granted and opinion superseded by 307 P.3d 877, 161
Cal.Rptr.3d 699 (Cal. 2013). But see Brown v. Citicorp Credit Services,
No. 1:12–cv–00062–BLW, 2013 WL 645942, at *3 (D.Idaho Feb. 21,
2013); Herrington v. Waterstone Mortg. Corp., No. 11–cv–779–bbc,
2012 WL 1242318, at *6 (W.D.Wis. Mar. 16, 2012), reconsideration
denied 2014 WL 291941 (W.D. Wisc. 2014); Grant v. Convergys
Corp., No. 4:12-CV-496, 2013 WL 781898 (E.D. Mo. 2013), cert. for
interlocutory appeal 2013 WL 1342985 (E.D. Mo. 2013), appeal dis-
missed No. 13-2094 (8th Cir. 2014). Even the California Supreme
Court, no recognized foe to class actions, has recognized that D. R.
Horton’s approach is a failure. See Iskanian, above. My dissent ech-
oes, but also expands upon, many of the points made in these court
decisions.
about their nature. For example, it does not take ad-
vanced legal training to determine that a set of rules enti-
tled the “Federal Rules of Civil Procedure” are actually
procedural rules.
And even if the majority was right that under the Act
we could possibly construe what are litigation procedures
that arise under other statutes as Section 7 rights, the
Supreme Court has repeatedly reminded the Board not to
ignore other and equally important Congressional ob-
jectives. Frequently, the entire scope of the Congres-
sional purpose calls for careful accommodation of one
statutory scheme to another, and it is not too much to
demand of an administrative body that it undertake this
accommodation without excessive emphasis upon its
immediate task.6
Both D. R Horton and the majority’s new gloss on it
fail that test. The Supreme Court has repeatedly held
that arbitration agreements must be enforced according
to their terms unless the FAA’s mandate to do so has
been overridden by a contrary Congressional command
contained in another statute.7 That command must be
express in the actual text of that statute; silence in the
text is insufficient.8 The Act, of course, contains no such
command. Therefore, under the Supreme Court’s bind-
ing model of statutory interpretation for determining and
resolving FAA-related conflicts with other statutes, the
Act neither conflicts with, nor can it displace, the FAA.
Without Section 7 expressly condemning arbitration or
the type of arbitration provision here at issue, we cannot
interpret it to override the FAA.
Not only is the Act’s textual silence deafening here,
the Supreme Court has further directed us to interpret the
FAA itself in a manner that precludes the majority’s ra-
tionale. The majority’s rationale on this point is that (1)
Section 7 rights are substantive, (2) the opportunity to
pursue a class action is a Section 7 right and remedy, and
(3) the Supreme Court has instructed that a valid arbitra-
tion agreement under the FAA may not require a party to
prospectively waive its “right to pursue statutory reme-
dies” (citing Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614, 637 fn. 19 (1985)). Thus,
the majority concludes that the FAA cannot possibly
allow an agreement with a provision precluding
6 Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942).
7 See, e.g., American Express Co. v. Italian Colors Restaurant, 133
S. Ct. 2304, 2309 (2013).
8 See CompuCredit Corp. v. Greenwood, 132 S.Ct 665, 672, 673
(2012); see also Walton v. Rose Mobile Homes LLC, 298 F.3d 470, 474
(5th Cir.2002) (“In every case the Supreme Court has considered in-
volving a statutory right that does not explicitly preclude arbitration, it
has upheld the application of the FAA.”). The FAA also does not re-
quire arbitration if a generally applicable defense to contract enforce-
ment applies, but that exception is also inapplicable here.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 810
class/collective action procedures, because that is a
waiver of Section 7 rights and remedies.
The problem is that such an interpretation of the
FAA—which otherwise requires an agreement to be en-
forced exactly according to its terms—would allow Sec-
tion 7 to swallow up the FAA itself. As the majority
concedes, in Concepcion, the Supreme Court held that an
individual-basis arbitration agreement (also known as a
“class action waiver”)9 was enforceable under the FAA,
and served valid goals of speed and efficiency. Howev-
er, that was not all. In that case, the Supreme Court also
prohibited the circular reasoning deployed here by the
majority in its interpretation of the FAA. Notably, the
Court forbade such an interpretation when it decided that
the FAA’s savings clause could not be construed to in-
clude a right that would be “absolutely inconsistent” with
the FAA’s provisions. AT&T Mobility, LLC v. Concep-
cion, 131 S.Ct. 1740, 1748 (2011). As the Court trench-
antly put it, “the [Federal Arbitration A]ct cannot be held
to destroy itself.” Id.
The majority ignores the Court’s binding statement of
interpretive principles here, instead attempting to lever-
age Mitsubishi’s general guidance into a license to blow
up the FAA’s allowance of class action waivers. But
Mitsubishi’s admonition against waiver of remedies is
dictum that has never been applied by the Court to inval-
idate any arbitration agreement. American Express Co.
v. Italian Colors Restaurant,133 S.Ct 2304 at 2310. The
majority’s FAA analysis thus rests upon the thinnest of
reeds. In any event, the Mitsubishi dicta cannot serve as
a self-destruct mechanism any more than the FAA’s tex-
tual savings clause could. Mitsubishi, a case from more
than 30 years ago near the dawn of the Supreme Court’s
FAA jurisprudence, simply cannot support the majority’s
rationale, where the Supreme Court has flatly and repeat-
edly rejected such an interpretation in later cases.
The governing law could not be plainer. Provisions in
arbitration agreements precluding class actions may not
be condemned simply because they restrict an employ-
ee’s ability to use litigation procedures established under
other statutes in litigating those employment-related
claims. This is especially so where the governing stat-
utes clearly describe the litigation procedures as proce-
dural rights. Nor may these kinds of arbitration agree-
ments be condemned on substantive grounds where the
9 Many commentators, courts, and indeed the Agreements here, refer
to provisions that require dispute resolution on an individual basis as
“class action waivers.” For clarity of reference, I adopt the same termi-
nology below. However, I note that these provisions could just as
easily be called “individual-basis arbitration agreements,” especially as
class action arbitrations tend to be the exception within the universe of
arbitrated disputes rather than a traditional norm to be “waived.”
FAA, as interpreted by the Supreme Court, not only
permits them but regards them as completely supportive
of its statutory purpose to encourage the speedy private
resolution of disputes.
D. R. Horton condemns these agreements all the same,
and in today’s decision the majority goes even further
and condemns an employer’s efforts to enforce those
agreements in court. This stance creates a clear conflict
not only with controlling Supreme Court precedent, as
noted above, but also with every Federal court that has
granted one of the motions to compel arbitration the ma-
jority today finds unlawful. Make no mistake—the
stakes in these underlying cases could not be higher for
employers and their ability to operate. More than 5500
FLSA collective actions were filed in Federal court
against employers in 2013 alone.10 Adding in the num-
ber of “pure” class actions (i.e., that are not also “hybrid”
FLSA collective actions) and representative actions only
increases the number of cases in this tsunami of litiga-
tion. Most of these cases comprise wage-hour actions
seeking very large amounts of damages, if not posing the
existential threat of bankrupting the targeted companies.
And, at this point in history, it is almost certain that a
vast majority of such cases will involve arbitration
agreements specifying that disputes will be handled on
an individual basis only, and therefore will involve mo-
tions to compel arbitration to enforce that provision of
the agreements.
As this particular case illustrates, D. R. Horton now
obligates this agency, upon the filing of an unfair labor
practice charge, to weigh in whenever such an arbitration
agreement with a class action waiver is invoked in court
and, in the majority’s view, to condemn as unfair labor
practices the filing of motions to compel arbitration. The
immediate consequence of such an unfair labor practice
finding will be a Board order awarding not only attor-
neys’ fees to the claimant’s side in the underlying litiga-
tion, regardless of the merits of that underlying claim,
but also protective injunctions against future attempts to
enforce the arbitration clause as remedies. This is bad
enough.11 So far, the first wave of Board litigation since
D. R. Horton issued in 2012 includes no fewer than 37
cases alleging D. R. Horton violations that are currently
pending before the members of the Board, awaiting dis-
position, as of October 2014.12 And many more are
10 Wage and Hour Litigation and Compliance 2014, Practicing Law
Institute, pp. 411–584 (Feb. 2014).
11 I agree generally and concur particularly with Member Miscimarra
in part E of his separate dissent that the Act does not permit the reme-
dies of attorneys’ fees and an injunction in a Board proceeding based
on an employer’s successful enforcement of its arbitration agreement.
12 Advanced Services, 26–CA–063184; Convergys Corp., 14–CA–
075249; Waterstone Mortgage Corp., 30–CA–073190; 24 Hour Fitness

MURPHY OIL USA, INC. 811
pending at the regional level. Time has not been kind to
D. R. Horton’s confident prediction that its holding “will
not result in any large-scale or sweeping invalidation of
arbitration agreements.”13 And, given the prevalence of
individual arbitration agreements and collective-
employment actions noted above, the number of cases in
which the Board will have to address charges seeking to
invalidate those agreements and attempts to enforce them
is not likely to diminish anytime soon, given the majori-
ty’s opinion. It bears repeating that the D. R. Horton
theory is a 2-year old theory that had already “failed its
field test” with close to 40 court rejections.14 Yet, my
colleagues soldier on.
Far worse than this direct Board involvement in exten-
sive litigation is that the majority’s adherence to D. R.
Horton commits this Agency to de facto intervention in
the process of litigating thousands of cases per year un-
der substantive laws other than our Act. The invalidation
of individual arbitration agreements otherwise covering
disputes arising under those laws effectively distorts that
dispute resolution process, substantially raising the fi-
nancial risks to defending employers who will have to
litigate the merits of an individual claim, such as in the
underlying wage-hour litigation here, under the Damo-
clean threat of compensating an entire class. This is an
unwise, unjustified, and unprecedented intrusion into the
course of Federal or State court litigation merely seeking
USA, Inc., 20–CA–035419; Countrywide Financial Corp., 31–CA–
072916; Amerisave Mortgage Corp., 10–CA–082519; Mastec Services
Co., 16–CA–086102; Bloomingdale’s, Inc., 31–CA–071281; Ralphs
Grocery Co., The Kroger Co., 21–CA–073942; Everglades College,
12–CA–096026; Cellular Sales of Missouri, 14–CA–094714; J. P.
Morgan Chase, 02–CA–098118; Gamestop Corp., 20–CA–080497;
Securitas Security, 31–CA–072179; Chesapeake Energy Corp., 14–
CA–100530; Kmart Corp., 06–CA–091823; d/b/a Concord Honda, 32–
CA–066979; Nijar Realty, Inc., 21–CA–092054; Neiman Marcus
Group, 31–CA–074295; Sprouts Farmers Market, 21–CA–099065;
Leslie’s Poolmart, Inc., 21–CA–102332; Haynes Building Services,
31–CA–093920; Network Capital Funding Corp., 21–CA–107219;
CPS Security USA, Inc., 28–CA–072150; Pep Boys Manny Moe & Jack
of California, 31–CA–104178; Domino’s Pizza, LLC, 29–CA–103180;
Multiband EC, Inc., 25–CA–108828; Labor Ready Southwest, Inc., 31–
CA–072914; Brinker International Payroll Co., 27–CA–110765; PJ
Cheese, Inc., 10–CA–113862; Professional Janitorial Services of Hou-
ston, 16–CA–112850; Flyte Tyme Worldwide, 04–CA–115437; Fuji
Food Products, 21–CA–095997; Applebees Neighborhood Grill and
Bar, 18–CA–103319; United Healthcare Svs., Inc., 02–CA–118724;
and RPM Pizza, 15–CA–113753. At least nine of these include allega-
tions of unlawful enforcement that will require the Board to decide
whether the respondent violated the Act by filing motions with a Feder-
al or State court.
13 D. R. Horton, above, at 2288.
14 The majority spends much ink citing various academic articles that
support, in whole or in part, the rationale of D. R. Horton. With due
respect to these authors— academics indeed taught me much of what I
know—the Constitution gives the courts the superior role and ultimate
authority in interpreting the many statutes in play here.
to enforce arbitration agreements according to their
terms.
Facts
The Respondent maintains two individual arbitration
agreements. The Respondent’s original agreement (the
Agreement), which applies to employees hired before
March 6, 2012, pertinently states:
. . . . Excluding claims which must, by statute or other
law, be resolved in other forums, Company and Individ-
ual agree to resolve any and all disputes or claims each
may have against the other which relate in any manner
whatsoever as to Individual’s employment, including but
not limited to, all claims beginning from the period of
application through cessation of employment at Compa-
ny and any post-termination claims and all related claims
against managers, by binding arbitration . . . . Disputes
related to employment include, but are not limited to,
claims or charges based upon federal or state statutes,
including, but not limited to, the Age Discrimination in
Employment Act, Title VII of the Civil Rights Acts of
1964, as amended, and any other civil rights statute, the
Americans with Disabilities Act, the Family and Medical
Leave Act, the Fair Labor Standards Act or other wage
statutes, the WARN Act, claims based upon tort or con-
tract laws or common law or any other federal or state or
local law affecting employment in any manner whatso-
ever . . . . By signing this Agreement, Individual and the
Company waive their right to commence, be a party to,
or class member or collective action in any court against
the other party relating to employment issues. Further,
the parties waive their right to commence or be a party to
any group, class or collective action claim in arbitration
or any other forum. The parties agree that any claim by
or against Individual or the Company shall be heard
without consolidation of such claim with any other per-
son or entity’s claim.
The Respondent required Charging Party Sheila Hob-
son to sign the Agreement at the time of her employment
in November 2008. In June 2010, Hobson and three ad-
ditional employees filed a collective action FLSA claim
in the United States District Court for the Northern Dis-
trict of Alabama, seeking compensation for alleged viola-
tions of the FLSA. The court granted the Respondent’s
motion to compel arbitration of the plaintiffs’ FLSA
claim on September 18, 2012, and further ordered that
the claim be stayed pending arbitration. Hobson v. Mur-
phy Oil USA, Inc., No. CV-10-S-1486-S (N.D. Ala.
2012). The plaintiffs have not appealed this decision.
The Respondent’s modified agreement (the Revised
Agreement), which applies to employees hired after
March 6, 2012, includes the above language, in its entire-
ty, with the addition of a single paragraph:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 812

Notwithstanding the group, class or collective action
waiver set forth in the preceding paragraph, Individual
and Company agree that Individual is not waiving his
or her right under Section 7 of the National Labor Rela-
tions Act (“NLRA”) to file a group, class or collective
action in court and that Individual will not be disci-
plined or threatened with discipline for doing so. The
Company, however, may lawfully seek enforcement of
the group, class or collective action waiver in this
Agreement under the Federal Arbitration Act and seek
dismissal of any such class or collective claims. Both
parties further agree that nothing in this Agreement
precludes Individual or the Company from participat-
ing in proceedings to adjudicate unfair labor practices
charges before the National Labor Relations Board
(“NLRB”), including, but not limited to, charges ad-
dressing the enforcement of the group, class or collec-
tive action waiver set forth in the preceding paragraph.
Analysis
For the purpose of this opinion, I assume that, as the
majority contends, the Agreement and Revised Agree-
ment waive, or at the least restrict, the ability of employ-
ees to institute or participate in class or collective actions
involving disputes related to their employment, or to
consolidate their claim with those of other employees.
Significantly, however, neither agreement restricts in any
way the ability of employees to discuss workplace griev-
ances, solicit other employees to join them in presenting
such claims to a court or arbitrator, or share information,
evidence, or financial resources for the purpose of litigat-
ing such claims. Nor does either agreement impose any
job-related consequence on employees who file a lawsuit
covered by the waiver. And the Respondent did not un-
dertake any job-related reprisal against the Charging Par-
ty or any other participant in the Hobson v. Murphy Oil
litigation; its sole response to the lawsuit was to file a
motion to compel arbitration with the court to enforce the
Agreement. In these circumstances, the maintenance and
enforcement of these agreements did not violate the Act,
and I would therefore dismiss the relevant complaint
allegations.15
15 I agree with the majority that employees reasonably would con-
strue the Agreement to prohibit them from filing unfair labor practice
charges with the Board and join in finding that the Agreement violated
Sec. 8(a)(1) on that basis.
Because I find that the Agreement and Revised Agreement did not
violate Sec. 8(a)(1) insofar as they included a waiver of class, collec-
tive, or joint litigation, I also find that the Respondent did not violate
the Act by filing a motion to compel arbitration to enforce those provi-
sions of the agreements. I therefore do not independently address here
the majority’s analysis of that enforcement violation, including the
circumstances in which a court filing may be condemned as an unfair
I. SECTION 7 DOES NOT PROTECT MECHANISMS
THAT EXIST UNDER OTHER STATUTES FOR
AGGREGATING WORKPLACE LITIGATION
Section 7 provides that employees have the right to
self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing, “to engage in other concerted activi-
ties for the purpose of collective bargaining, or other
mutual aid or protection”— and to refrain from these
activities. D. R. Horton and today’s majority hold that
Section 7 protects a lawsuit filed by multiple employee-
plaintiffs and class or collective actions filed by an indi-
vidual employee, regarding wages, hours, or working
conditions.16 This holding dramatically overstates the
scope of Section 7 as it applies to workplace litigation.
It is certainly true that Section 7 generally protects
concerted employee efforts “to improve their working
conditions through resort to administrative and judicial
forums.”17 And it is also true that a lawsuit initiated by
multiple employees is concerted activity within the
meaning of Section 7 because such a lawsuit is “engaged
in with or on the authority of other employees, and not
solely by and on behalf of the employee himself.”18 Pri-
or to D. R. Horton, however, the Board had never ex-
tended this principle to the filing by a single employee of
a class or collective action.19
labor practice consistent with BE&K Construction Co. v. NLRB, 536
U.S. 516 (2002), but concur with Member Miscimarra’s criticism of
that analysis set forth in his separate dissent.
16 D. R. Horton, at 2278–2280.
17 Eastex, Inc. v. NLRB, 437 U.S. 556, 565–566 (1978). Significant-
ly, the Court in Eastex specifically stated it was not addressing the
question of “what may constitute ‘concerted’ activities in this context.”
Id. at 566 fn. 15.
18 Meyers Industries, 281 NLRB 882, 885 (1986), affd. sub nom.
Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S.
1205 (1988). Here, an employer’s unilateral rule, as opposed to an
arbitration agreement, that purported to essentially prohibit traditional
joinder would fall afoul of the Act.
19 See, e.g., Spandsco Oil & Royalty Co., 42 NLRB 942, 948–950
(1942) (joining of three employees in FLSA suit constituted concerted
activity protected by the Act; discharge of employees violated the Act):
Salt River Valley Water Users Assn., 99 NLRB 849, 853–854 (1952)
(circulation of a petition designating employee as other employees’
agent in an FLSA suit for wages was protected, concerted activity and
discharge of petition circulator violated the Act), enfd. 206 F.2d 325
(9th Cir. 1953); Le Madri Restaurant, 331 NLRB 269, 269, 275–277
(2000) (suit filed by 19 named employee plaintiffs for violation of
Federal and State wage and hour laws was protected, concerted activi-
ty; discharge of two plaintiffs violated the Act); Trinity Trucking &
Materials Corp., 221 NLRB 364, 365 (1975), enfd. mem. 567 F.2d 391
(7th Cir. 1977), cert. denied 438 U.S. 914 (1978) (discharge of three
employees who together filed breach of contract claim against employ-
er for failing to pay contract rate for wages and truck rentals violated
the Act). Contrary to the majority, that four employees filed the action
in question has no bearing on the question of whether class or collective
action procedures fall within the ambit of Sec. 7 rights. That there are

MURPHY OIL USA, INC. 813
Undeterred, the Board in D. R. Horton made that leap,
positing that such litigation “clearly” is concerted be-
cause it “seeks to initiate or induce group action.”20 But
D. R. Horton never explains just what that group action
might be. In fact, of course, an opt-out class action may
be initiated and litigated by an individual employee from
start to finish without any action whatsoever by other
employees.21 While class action litigation affects other
employees who are members of the class, and may even
benefit them depending on the outcome of the litigation,
the Board has squarely rejected the notion that concert-
edness may be presumed or found on this basis.22 There
only four cofilers means, as a matter of simple logic, that they are not
actually joined by any of the other employees in the work force. Acting
to jointly file a single complaint as named plaintiffs or to consolidate
individually filed complaints, i.e. matters of traditional joinder, can be
protected activity under Sec. 7. See sec. II, infra. But class and collec-
tive action procedures create an entirely different litigation mechanism
to aggregate potential claims, which, for example, does not rely on the
traditional processes where multiple claimants (1) cofile a single com-
plaint or (2) individually file and then consolidate multiple complaints.
20 D. R. Horton, at 2279.
21 Fed.R Civ.P. Rules 23(b)(1) and (2) provide for mandatory class
actions in certain circumstances, where class members have no right to
notice of the class action and no opportunity to opt out. Rule 23(b)(3)
allows class actions in other situations, if it is the case that “the ques-
tions of law or fact common to class members predominate over any
questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicat-
ing the controversy.” In that setting, class members are entitled to
receive “the best notice that is practicable under the circumstances” and
to withdraw from the class at their option. Rule 23(c)(2)(B). While a
presumption of concerted activity is particularly unjustified for manda-
tory class actions, the fact remains that even under Rule 23(b)(3) class
members are not required to take any affirmative action in order to be
bound by the lawsuit, and most often take no such action. See general-
ly Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct 2541 (2011).
22 See Meyers, 281 NLRB at 888 (employee invocation of statutory
rights is not inherently “a continuation of an ongoing process of em-
ployee concerted activity”) and id. at 886 (recognizing instead that “the
question of whether an employee has engaged in concerted activity is a
factual one based on the totality of the record evidence”); see also GC
Memo 10-06 (2010) at 6 (rejecting concept of “constructive concerted
activity”).
United Parcel Services, 252 NLRB 1015, 1018, 1022 fn. 26 (1980),
enfd. 677 F.2d 421 (6th Cir. 1982), though cited in D. R. Horton for the
proposition that a class action lawsuit is protected, concerted activity, is
not to the contrary. There, employee Bowlds was discharged after he
circulated a petition among employees to join a class action suit alleg-
ing violations of a state rest period law, collected money from his fel-
low employees for the retainer fee, and thereafter kept them informed
of the progress of the suit, which was filed with 13 employees includ-
ing Bowlds named as plaintiffs. In a finding adopted by the Board, the
judge concluded that “activities of this nature are concerted, protected
activities, and I find this to be so here,” id. at 1018, and that Bowlds’
discharge was unlawful. I therefore disagree with any implication in D.
R. Horton that United Parcel Service stands for the proposition that the
filing of a class action lawsuit by a single employee, without more, is
protected, concerted activity.
I recognize that FLSA collective actions under 29 U.S.C. § 216(b)
use an opt-in procedure, under which employees are notified of the
is simply no basis for the Board to find that the filing of a
class action is concerted under these circumstances, and
D. R. Horton’s presumption of concerted-ness is contrary
to the precedent it cites. The majority relies on NLRB v.
City Disposal Systems, Inc., 465 U.S. 822 (1984), to as-
sert that its radical approach to concerted activity actual-
ly comports with precedent. But, this assertion fails up-
on a close reading of that case. In City Disposal, an em-
ployee was discharged when he refused to drive a truck
that he honestly and reasonably believed to be unsafe
because of faulty brakes. After his union declined to pro-
cess his grievance under the applicable collective- bar-
gaining agreement, he filed an unfair labor practice
charge with the Board challenging his discharge. An ad-
ministrative law judge concluded that, even though the
employee acted alone in asserting a contractual right, his
refusal to operate the truck constituted concerted activity
protected by Section 7, and that the employer had there-
fore committed an unfair labor practice in discharging
him. The Board adopted the judge’s findings and conclu-
sions, applying its longstanding Interboro doctrine,
which was based on the conclusions that an individual’s
reasonable and honest assertion of a right contained in a
collective-bargaining agreement is an extension of the
concerted action that produced the agreement, and that
the assertion of such a right affects the rights of all em-
ployees covered by the agreement.23 The Supreme Court
held that the Interboro doctrine was a reasonable reading
of the Act. That is all City Disposal stands for.
In City Disposal, however, the Supreme Court con-
cluded that a lone employee could engage in “concerted
activity” clearly because invoking a provision of a col-
lective-bargaining agreement is a logical extension of the
admittedly concerted activity of bargaining:

The invocation of a right rooted in a collective
bargaining agreement is unquestionably an integral
part of the process that gave rise to the agreement.
That process—beginning with the organization of a
union, continuing into the negotiation of a collective
bargaining agreement, and extending through the en-
forcement of the agreement—is a single, collective
activity. Obviously, an employee could not invoke a
right grounded in a collective bargaining agreement
were it not for the prior negotiating activities of his
fellow employees. Nor would it make sense for a un-
lawsuit and their right to participate. See generally Hoffman-LaRoche,
Inc. v. Sperling, 493 U.S. 165, 169–170 (1989). This simply illustrates
the need for a particularized determination of whether protected, con-
certed activity is involved, an analysis entirely missing from D. R Hor-
ton.
23 See Interboro Contractors, Inc., 157 NLRB 1295, 1298 (1966),
enfd., 388 F.2d 495 (2d Cir. 1967).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 814
ion to negotiate a collective bargaining agreement if
individual employees could not invoke the rights
thereby created against their employer. Moreover,
when an employee invokes a right grounded in the
collective bargaining agreement, he does not stand
alone. Instead, he brings to bear on his employer the
power and resolve of all his fellow employees.
When, for instance, James Brown [the employee at
issue] refused to drive a truck he believed to be un-
safe, he was in effect reminding his employer that he
and his fellow employees, at the time their collective
bargaining agreement was signed, had extracted a
promise from City Disposal that they would not be
asked to drive unsafe trucks. He was also reminding
his employer that, if it persisted in ordering him to
drive an unsafe truck, he could reharness the power
of that group to ensure the enforcement of that
promise. It was just as though James Brown was re-
assembling his fellow union members to reenact
their decision not to drive unsafe trucks. A lone em-
ployee’s invocation of a right grounded in his collec-
tive bargaining agreement is, therefore, a concerted
activity in a very real sense

465 U.S. at 832–833 (footnote omitted). As the above
passage makes eminently clear, the collectively bar-
gained nature of a collective-bargaining agreement is
what makes the lone employee’s assertion of a grievance
under that agreement “concerted activity.”
Therefore, this case could not be farther from City
Disposal. The Federal Rules of Civil Procedure were not
collectively bargained. Section 216(b) of the FLSA was
not collectively bargained. None of the baseline em-
ployment law statutes under which modern class or col-
lective actions are filed in today’s modern era are collec-
tively bargained.24 Instead, these procedures allow any-
one (employee or not) to file a claim to represent anyone
(employee or not), based on a pleadings definition draft-
ed and controlled entirely by an individual plaintiff’s
lawyer. That is all fine and good, and in accordance with
how modern class actions work, but it is a thousand
miles away from the concerted activity theory of City
Disposal.
Worse yet, in advancing their unprecedented interpre-
tation of Section 7, my colleagues argue that the filing of
a class or collective action predicated on a statute that
also grants rights to the employee’s coworkers is con-
certed for the exact same reason that the invocation of
rights under a collective-bargaining agreement was held
24 Meyers, 281 NLRB at 888 (“Certainly the activity of the legisla-
tors themselves cannot be said to be concerted activity within the con-
templation of the Wagner Act.”).
concerted in City Disposal. Of course, this is a blatant
attempt to resurrect the Alleluia Cushion theory of im-
plied concertedness (“when an employee speaks up and
seeks to enforce statutory provisions relating to occupa-
tional safety designed for the benefit of all employees, . .
. we will find an implied consent thereto [by other em-
ployees] and deem such activity to be concerted”).25
This theory was rejected in Meyers, above, where the
Board carefully explained why the assertion of rights
under a collective-bargaining agreement was concerted,
while “a single employee’s invocation of a statute enact-
ed for the protection of employees generally” was not.26
The Meyers Board’s conclusion was consistent with the
Supreme Court’s earlier holding that Section 7 does not
inherently create any additional, overlapping protection
or remedy for a right that is established under another
employment statute. Emporium Capwell Co. v. Western
Addition, 420 U.S. 50, 72–73 (1975) (Sec. 7 is not vio-
lated simply because Title VII has been violated). The
majority’s resurrection of the discredited Alleluia Cush-
ion principle, standing alone, requires that its reading of
Section 7 be rejected.
My colleagues misrepresent my views when they ac-
cuse me of holding “that employees’ concerted legal ac-
tivity deserves very little, if any protection under Section
7 of the NLRA.” Consistent with the actual holdings of
the precedent discussed above, Section 7 does cover em-
ployees when they speak to other employees about sus-
pected violations of laws affecting their working condi-
tions,27 actually solicit other employees to join with them
in asserting such claims in court or arbitration,28 pool
financial resources to fund the litigation,29 and actively
participate with other employees as litigants in the case.30
It is this sort of employee-to-employee interaction and
cooperation that lies at the heart of the national labor
policy, embodied in the Act we uphold, of “protecting
the exercise by workers of full freedom of association,
self-organization, and designation of representatives of
their own choosing . . . .”31 The majority sadly depre-
25 221 NLRB 999, 1000 (1975); see also Fresh & Easy, 361 NLRB
151 (2014), 164–168, 175–178 (opinions of Members Miscimarra and
Johnson, concurring and dissenting) for an extended discussion of the
glaring weaknesses of the implied concertedness né “solidarity” theory.
26 Meyers, 281 NLRB at 887.
27 United Parcel Service, 252 NLRB at 1015; see also Fresh & Easy,
supra at 174–175 for my own agreement with the proposition that an
individual employee’s solicitation of a second employee as a witness to
support the first employee’s own claim constitutes concerted activity to
induce group action, if and where the conduct that gave rise to the
claim actually impacted both employees.
28 Salt River Valley Water Users Assn., 99 NLRB at 849.
29 United Parcel Service, 252 NLRB at 1015.
30 Spandsco Oil & Royalty Co., 42 NLRB at 942.
31 29 U.S.C. § 151.

MURPHY OIL USA, INC. 815
cates the significance of those interactions by making
clear that only the ability to litigate in court on a class or
collective basis holds any significance for them, and is
uncharitable to suggest that this Member is not support-
ive of affording employees meaningful Section 7 protec-
tion in the litigation context.
In contrast to the above-mentioned employee interac-
tions which are covered by Section 7, a particular litiga-
tion mechanism, is, at most, a peripheral concern to the
Act, especially where the mechanism is established and
defined by statutes different than the Act, to handle
claims under different statutes than the Act, and in a
different forum than the Board. There, the issue at hand
is whether litigants seeking to litigate as a group, whether
via joinder of claims or a class or collective action, have
satisfied the applicable procedural requirements for ag-
gregating claims, and, once the terms of the litigation
have been established by the court or arbitrator according
to that forum’s rules, whether the legal standard to estab-
lish a violation of law has been established. The Act
protects concerted activity in order to remedy “the ine-
quality of bargaining power” between employees and
employers that Congress identified as an obstacle to
commerce, in particular, with regard to wages and every-
day working conditions.32 In litigation before a court or
arbitrator, bargaining power is irrelevant to the merits or
procedural rulings in a case. In contrast, those rulings
are determined by the application of established legal
principles to the facts of the case by a neutral deci-
sionmaker. For example, the merits of the procedural
case as to whether claims aggregation makes sense, and
not the “bargaining power” of the litigants, determine the
outcome.33 The policies behind the creation of the Act,
therefore, offer no support to the Board imposing its
standards here on the collective prosecution and defense
of employment claims.
My colleagues dispute the foregoing analysis, and go
so far as to term it “novel” and “restrictive.” Nothing
could be farther from the truth. As indicated above, I
agree with the actual holdings of the Board decisions that
were cited in D. R. Horton with regard to Section 7 pro-
tection for concerted litigation activity. But none of
those cases holds that the filing of a class or collective
action lawsuit by an individual employee, without more,
is concerted activity within the meaning of Section 7—a
32 Id.
33 Nor can it be claimed that the mere requirement of individual arbi-
tration is some kind of harm resulting from bargaining inequality. As
the Supreme Court has ruled on many occasions, the FAA precludes
any court, or this Agency, from regarding arbitration as inferior to
litigation generally, or individual arbitration as inferior to collective
litigation or arbitration, specifically. See, e.g., Stolt-Nielsen, 559 U.S.
at 662.
fact the majority does not and cannot dispute. It is thus
obviously their interpretation of Section 7, not mine, that
is “novel.”
II. CONGRESS HAS ALREADY DETERMINED THE
CLAIM AGGREGATION PROCEDURES FOR LITIGATION
UNDER FEDERAL STATUTES AND IN THE FEDERAL
COURTS, AND THE BOARD CANNOT IGNORE THEIR
LIMITS OR REWRITE THEM BY LABELING THEM
“SECTION 7 RIGHTS”
Regardless of the many obstacles noted above, D. R.
Horton attempted to impose a guarantee to initiate and
pursue class and collective litigation applying to all em-
ployment litigation, all the same. While acknowledging
the obvious point that “there is no Section 7 right to class
certification,” D. R. Horton asserted that Section 7 cre-
ates a nonwaivable substantive right “to act concertedly
by invoking FRCP Rule 23, Section 216(b), or other le-
gal procedures . . . .”34 By this holding, D. R. Horton
attempted to transform Section 7 into a “procedural su-
perhalo” that authorizes class and collective litigation
even where Congress and the courts would not and do
not under the applicable litigation procedures them-
selves. The majority opinion today adopts this conclu-
sion without hesitation.35
Congress obviously viewed these litigation procedures
quite differently. Access to Rule 23 is “a procedural
right only,”36 and “an exception to the usual rule that
litigation is conducted by and on behalf of the individual
named parties only” at that.37 For FLSA, Congress has
been even more specific in defining the procedural limi-
tations for aggregate claims. Indeed, Congress made the
conscious policy choice to limit FLSA collective actions
only to those employees who affirmatively chose to join
their own claim to that of the original, named plaintiff’s
claim—and thus “opt in”—because Congress was con-
cerned about “excessive litigation spawned by plaintiffs
lacking a personal interest in the outcome” of such cas-
34 D. R. Horton, at 2286. As discussed below, D. R. Horton admits
that this asserted right is not infringed if an employer opposes class or
collective litigation on any basis other than an individual arbitration
agreement.
35 Indeed, the majority references a theoretical model posed in a law
review article 13 years ago to characterize the NLRA, Norris LaGuar-
dia Act, and FAA as a class of “super statutes,” and suggests a frame-
work for resolving conflicts among them, borrowing from the same
article. See majority opinion, fn. 86, supra. With due respect, the
Supreme Court in the last 3 years has made plain how FAA conflicts
are to be resolved—the FAA prevails absent an express textual com-
mand in the other statute—and unless and until the Court changes
course, we are bound by that framework. See sec. III, infra,
36 Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332
(1980).
37 Wal-Mart v. Dukes,131 S.Ct. at 2550.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 816
es.38 Congress also wished to free “employers of the
burden of representative actions” and ensure participa-
tion of only those plaintiff employees “who asserted
claims in their own right.”39 Stated simply, the very indi-
vidual-by-individual requirement to sue that “class action
waivers” contain, and that D. R. Horton condemns, in-
deed underpins the “opt in” mechanism that Congress
chose for the FLSA.40 In effect, rather than expand a
plaintiff’s rights, the FLSA collective action provision
actually limits the procedural right a plaintiff otherwise
would have to file a representative action under Rule 23
without the prior consent of other employees.41 And
Congress intended for access to these exceptional proce-
dures under both Rule 23 and the FLSA to be waivable,
including as part of an arbitration agreement as in this
case.42
D. R. Horton’s divination of a contrary rule in Section
7 is especially remarkable given that there was no such
thing as a class or collective action in any modern sense
when the Act was passed in 1935. Congress enacted the
FLSA in 1938, and its current collective action procedure
was not added until 1947. That “opt in” model certainly
does not contemplate mass lawsuits with no participation
by other than a few named plaintiffs. It was not until
1966 that Rule 23 of the Federal Rules of Civil Proce-
dure was amended to create the “opt out” class device,
which assumes as a legal fiction that all similarly situated
38 Hoffman-LaRoche, Inc. v. Sperling, 493 U.S. at 173 (citing 93
Cong.Rec. 538, 2182 (1947) (remarks of Sen. Donnell).
39 Id. As Senator Donnell explained:
Obviously, Mr. President, this [opt-in procedure] is a wholesome pro-
vision, for it is certainly unwholesome to allow an individual to come
into court alleging that he is suing on behalf of 10,000 persons and ac-
tually not have a solitary person behind him, and then later on have
10,000 men join in the suit, which was not brought in good faith, was
not brought by a party in interest, and was not brought with the actual
consent or agency of the individuals for whom an ostensible plaintiff
filed the suit. So we have provided, as I say, that no employee shall be
made a party plaintiff to any such action unless he gives his consent in
writing and unless such consent is filed in the court in which the action
is brought. Certainly there is no injustice in that, for if a man wants to
join in the suit, why should he not give his consent in writing, and why
should not that consent be filed in court?
40 Congress adopted this same “opt in” mechanism with the ADEA
as well See Kimmel v. Florida Board of Regents, 528 U.S. 62, 67
(2000).
41 Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326, 1336
(11th Cir. 2014).
42 Italian Colors, 133 S.Ct at 2310 (congressional approval of Rule
23 does not establish an entitlement to class proceedings for the vindi-
cation of statutory rights); Gilmer v. Interstate/Johnson-Lane Corp.,
500 U.S. 20, 26 (1991) (ADEA collective action procedure waivable);
Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013) (FLSA
does not preclude the waiver of collective action claims); Owen v.
Bristol Care, Inc., 702 F.3d at 1050 (same); Carter v. Countrywide
Credit Industries, Inc., 362 F.3d 294, 298 (5th Cir. 2004) (same); Ad-
kins v. Labor Ready, Inc., 303 F.3d 496, 503 (4th Cir. 2002) (same).
persons are plaintiffs, that the modern class action was
created.43 This was nearly three decades after the draft-
ing and passage of the “mutual aid and protection” lan-
guage in Section 7. Simple respect for the laws of time
indicates that none of these developments in aggregate
litigation procedure were intended or contemplated by
Congress to be covered when the generalized “mutual aid
or protection” language was passed into law in 1935, or
reaffirmed in 1947. It is telling that D. R. Horton did
not cite or rely on a single shred of legislative history to
show otherwise.44 Today’s majority attempts to deflect
43 The majority cites older Federal equity practice to show that the
drafters of the Act perhaps had employee class actions in mind as con-
ceivable “mutual aid and protection.” However, the majority cannot
show that employees could or did typically bring claims as aggregate
actions in 1935. More to the point, no less than the Supreme Court has
opined that the modern rule “gained its current shape in an innovative
1966 revision” of which the new opt-out feature “was the most adven-
turesome innovation,” all well after the passage of the Act. Amchem
Products v. Windsor, 521 U.S. 591, 614 (1997) (cites and quotes omit-
ted; emphasis added). There is simply no plausible basis to believe the
Act’s drafters had any inkling that the Act would incorporate modern-
style, opt-out employment class actions.
44 D. R. Horton’s bypassing of legislative history unfortunately is
symptomatic of its general bypassing of a number of axioms of statuto-
ry interpretation. Where a legislative body creates a law to regulate
subject matter X—let’s call it “Law X”— several things are usually
true. Typically, any regulation of X is contained in Law X. And, any
fundamental expansion of Law X requires an equally fundamental
amendment to Law X. Statutes are expected to contain a “unity of
subject matter”—Law X pertains to subject X, such that one does not
use an unrelated Law Y to explain Law X. See 1A Norman J. Singer &
J.D. Shambie Singer, Statutes and Statutory Construction (Sutherland
Statutory Construction) Sec. 17:1 (7th ed. 2009). Implied repeals and
implied amendments of one statute by another are disfavored. Id. at
Sec. 22:13. Congress also typically does not institute radical revisions
of Law X by authoring generalized language in Law Y. See Whitman
v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001) (“Con-
gress . . . does not alter the fundamental details of a regulatory scheme
in vague terms or ancillary provisions—it does not . . . hide elephants in
mouseholes.”); Emporium Capwell, above, 420 U.S. at 72–73 (Sec. 7
does not supply an additional remedy for a Title VII violation). And, it
would be especially puzzling to hold that Congress anachronistically
modified Law X (let’s say it was passed in 1966 like the modern class
action procedure in Rule 23 of the Fed. R. Civ. P.) by statutory lan-
guage enacted more than 30 years beforehand in Law Y (let’s say
passed in 1935 like the Act). See fn 35, above. And, just this past
term, the Supreme Court found that, in the absence of a showing that
Congress intended to elevate one Federal statute over another, a Federal
agency authorized to regulated one body of law may not preclude pri-
vate parties from availing themselves of a well-established remedy
pursuant to another body of law, simply because its regulations touch
on similar subject matters. “An agency may not reorder Federal statuto-
ry rights without congressional authorization.” POM Wonderful LLC v.
Coca Cola Co., 134 S.Ct. 2228, 2241 (2014) (Food and Drug Admin-
istration (“FDA”) may not elevate the Food Drug and Cosmetics Act
(FDCA) and the FDA’s own regulations over the private cause of ac-
tion authorized by the Lanham Act, when no showing that Congress
intended FDCA to have preclusive effect.). Although D. R. Horton
failed to grapple with any of these interpretive and logical problems, its

MURPHY OIL USA, INC. 817
this point by equating new legal rules like Rule 23 with
new technological phenomena like Facebook, the use of
which for Section 7 purposes obviously falls within the
Board’s regulatory domain. But the problem for the ma-
jority’s argument here is that new legal rules are legal
rules. They have their own limits and contours, con-
sciously created by Congress, the courts, or both. These
boundaries we are neither free to ignore entirely nor treat
other laws like a tabula rasa upon which we can etch any
given configuration of Section 7 rights.
D. R. Horton inappropriately substitutes the Board’s
judgment for that of the Congress. Congress has occu-
pied the field in determining the scope of the rights af-
forded by Rule 23 and Section 216(b), and has given the
Board no role to play in the administration of those pro-
visions. To the contrary, their application in a particular
case is confided to the Federal courts under Article III of
the Constitution. Here, even those courts are constrained
by the rules as they exist – as procedural rules:

And, of overriding importance, courts must be mind-
ful that [Federal] Rule [of Civil Procedure] 23 as
now composed sets the requirements they are bound
to enforce. Federal Rules take effect after an exten-
sive deliberative process involving many reviewers:
a Rules Advisory Committee, public commenters,
the Judicial Conference, this Court, the Congress.
See 28 U.S.C. §§ 2073, 2074. The text of a rule thus
proposed and reviewed limits judicial inventiveness.
. . . .

Amchem, 521 U.S. 591, 618 (1997).45 Where “judicial
inventiveness” is prohibited, so, too, is our agency pro-
hibited from effectively rewriting Rule 23. And, regard-
less of whether the Board might believe that the proce-
dures provided by these statutes are somehow “rendered
inadequate” or even “violated” because of a class action
waiver, the Board cannot then construe Section 7 to pro-
vide an additional remedy. That kind of determination is
the province of Congress:

Whatever [the] factual merit [of the argument that
Title VII remedies are inadequate to prevent race
discrimination], this argument is properly addressed
to the Congress, and not to this Court or the NLRB.
In order to hold that employer conduct violates §
8(a)(1) of the NLRA because it violates § 704(a) of
Title VII, we would have to override a host of con-
woeful track record illustrates that Federal and State judges have not
overlooked them.
45 Amchem here noted that the Rules Enabling Act (28 U.S.C. §§
2071, et seq.) limits the power of courts in expanding Rule 23. It also
thus limits the Board. See additionally, infra, at pp. 50–52.
sciously made decisions well within the exclusive
competence of the Legislature.

Emporium Capwell, 420 U.S. at 72–73. It is therefore
not surprising that D. R. Horton’s attempt to convert the
class or collective action procedures of other statutes into
a nonwaivable substantive Section 7 right has been so
unsuccessful to date.46
A. Section 8(a)(1) Does Not Prohibit all Limits on
Section 7 Activity: it Would Permit the Extremely
Tangential Limit on Such Activity, if a Limit at all,
Posed by Mere Restrictions on a Particular
Litigation Procedure, and it Would Permit
Employees to Agree to Such Restrictions
Even if I were to ignore Congress and the courts, and
simply look to our own precedent on the limits of Section
7 rights, D. R. Horton’s broad prohibition of class and
collective action waivers still could not stand. Section
8(a)(1) states that it shall be an unfair labor practice for
an employer “to interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed in section
7” of the Act. D. R. Horton held that the arbitration
agreement at issue there, and by extension all arbitration
agreements that require arbitration of workplace disputes
on an individual basis, restricted the asserted Section 7
right to collective litigation and therefore violated Sec-
tion 8(a)(1).47 The Board went on to say, with no sup-
porting analysis whatsoever, that an employer does not
violate the Act by opposing class certification on any
grounds other than the arbitration agreement.48 Notably,
completely missing from D. R. Horton or the majority’s
opinion today is any explanation of why an employer
logically does not interfere with protected, concerted
activity (as defined in D. R. Horton) by opposing class,
collective, or group litigation on such grounds. Certainly
opposing a class certification motion by filing an opposi-
tion pleading can just as surely result in preventing class
action status as moving to enforce an arbitration agree-
ment containing a class action waiver. This conceptual
46 Nothing in Eastex is to the contrary. Instead, the Court in Eastex
specifically refused to hold broadly that an employer must allow the
distribution on its premises of any literature that falls within the protec-
tion of Sec. 7, regardless of how attenuated its connection to the em-
ployees’ immediate terms and conditions of employment. My con-
struction of the Act, rather than the absolutist approach adopted by D.
R. Horton, is consistent with these principles. See 437 U.S. at 572–575.
47 D. R. Horton, at 2280.
48 Id. at 10 fn. 24. Although D. R. Horton does not say so explicitly,
I assume the majority would reach the same result with respect to an
employer’s opposition to FLSA collective action status, or to the join-
der of the claims of multiple employees in a single lawsuit, on grounds
other than an arbitration agreement.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 818
flaw is one of many showing why the D. R. Horton theo-
ry has been rejected by a legion of judges.49 .
Contrary to the apparent assumption of the D.R Horton
opinion, a violation of Section 8(a)(1) is not made out
simply by showing that Section 7 activity has been re-
stricted. To the contrary, “[u]nder the 8(a)(1) standard,
the Board first examines whether the employer’s conduct
reasonably tended to interfere with Section 7 rights. If
so, the burden is on the employer to establish a legitimate
and substantial business justification for its conduct.”50
“It is the responsibility of the Board to strike the proper
balance between the asserted business justifications and
the invasion of employee rights in light of the Act and its
policy.”51 D. R. Horton failed to acknowledge, much
less undertake, this analysis.
Of course, these principles provide the missing expla-
nation for D. R Horton’s statement that an employer acts
lawfully when it opposes class certification on grounds
other than a disputed arbitration agreement. Insofar as
49 The majority several times asserts that nothing in its opinion guar-
antees class certification, but merely “the right to pursue” class certifi-
cation. That distinction, however, cannot minimize the sea change that
D. R. Horton made to the class and collective action process under
Federal law. The majority’s distinction does not alter the fact that Rule
23 and FLSA Sec. 216 procedures have now been converted into sub-
stantive rights. For example, the majority’s asserted “right to pursue
class certification” is no different than finding that there is a substantive
right to initially bring a Rule 23 motion, and a substantive right to carry
that motion forward until there is an ultimate determination on class
certification by a court. Here, the same set of steps provided by Rule 23
are recast as substantive guarantees, trumping an arbitration agreement
that would otherwise contain a different claims process. Notably, Rule
23 itself does not guarantee class certification, so the majority’s disa-
vowal of a “class certification guarantee” is hollow. That “limit” does
not meaningfully constrain the D. R. Horton rule from being a guaran-
tee of the full Rule 23 process.
And, even if all that the “right to pursue” class certification would
entail is the right of an employee’s Rule 23 motion to survive challenge
by an arbitration agreement containing a class action waiver, that is still
a new, substantive right. It is simply creating a privilege for a certain
class of Rule 23 litigants—persons who are “employees” under the
National Labor Relations Act—that does not exist for any other Rule
23 litigant. By any definition, that is creating both a guarantee and a
substantive alteration of Rule 23.
50 ANG Newspapers, 343 NLRB 564, 565 (2004). This balance is
mandated by the Supreme Court, which has instructed the Board that it
must balance:
the undisputed right of self-organization assured to employees under
the Wagner Act and the equally undisputed right of employers to
maintain discipline in their establishments. Like so many others, these
rights are not unlimited in the sense that they can be exercised without
regard to any duty which the existence of rights in others may place
upon employer or employee. Opportunity to organize and proper dis-
cipline are both essential elements in a balanced society.
Republic Aviation v. NLRB, 324 U.S. 793, 797–798 (1945); accord:
Independent Electrical Contractors of Houston, Inc. v. NLRB, 720 F.3d
543, 553–554 (5th Cir. 2013), denying enf. to 355 NLRB 1024 (2010).
51 Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001).
the employee conduct at issue is protected by Section 7,
any effort by the employer to restrict it interferes with
Section 7 rights to some extent. But the impact on those
Section 7 rights posed by procedural litigation rules is
limited, because employees have no baseline entitlement
to collective litigation, under the rules establishing the
standards for such litigation, such as Rule 23 and Section
216(b). Further, employers have a legitimate and sub-
stantial business justification for opposing group litiga-
tion on such grounds, both because they have a legal
right to do so under other Federal statutes and rules of
procedure and in order to avoid the cost and liability ex-
posure to which they would otherwise be subjected.
Moreover, any effort by the Board to prevent a party to
litigation from asserting the defenses to class or collec-
tive litigation, or to the joinder of parties, that are availa-
ble to any litigant would— to put it mildly—raise serious
First Amendment issues.52
This balancing analysis, required by decades of Board
and Supreme Court precedent, also precludes a finding
that an employer violates Section 8(a)(1) by entering into
an arbitration agreement that requires that employment-
related disputes be resolved through arbitration, or pre-
cludes class or collective litigation of claims. Employers
have legitimate business reasons to adopt such agree-
ments. First, individual arbitration agreements may re-
duce litigation costs and delays by providing informal,
streamlined procedures that can be tailored to the type of
dispute they cover.53 Second, while providing an effec-
tive method for resolving covered disputes,54 agreements
that provide for individual arbitration also shield defend-
ants from “the risk of ‘in terrorem’ settlements that class
actions entail.”55
Risk avoidance is an interest completely separate from,
and neutral to, Section 7 rights. It cannot be gainsaid
that the class action device poses the risk—regardless of
a case’s merits—that settlement becomes the only viable
52 See generally BE&K Construction Co. v. NLRB, 536 U.S. at 516.
53 AT&T Mobility LLC v. Conception, 131 S.Ct 1740, 1749 (2011).
See also Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123 (2001)
(“Arbitration agreements allow parties to avoid the costs of litigation, a
benefit that may be of particular importance in employment litigation,
which often involves smaller sums of money than disputes concerning
commercial contracts”).
54 Arbitration agreements are not enforceable if they prevent the ef-
fective vindication of a federal statutory cause of action. Italian Col-
ors, 133 S.Ct at 2310. Of course, no arbitration agreement can prevent
a party from filing a charge with the Board, and the Revised Agreement
makes clear that it is not intended to do so.
55 Concepcion, 131 S.Ct. at 1752. The risks of class litigation are
magnified with class arbitration given the extremely limited scope of
judicial review available for the arbitrator’s opinion: “We find it hard to
believe that defendants would bet the company with no effective means
of review, and even harder to believe that Congress would have intend-
ed to allow state courts to force such a decision.” Id.

MURPHY OIL USA, INC. 819
option. As Judge Posner trenchantly discerned nearly 20
years ago in analyzing the risks that a defendant would
weigh in a products liability class action,

Suppose that 5,000 of the potential class members are
not yet barred by the statute of limitations. And sup-
pose the named plaintiffs . . . win the class portion of
this case to the extent of establishing the defendants’ li-
ability under either of the two negligence theories. It is
true that this would only be prima facie liability, that
the defendants would have various defenses. But they
could not be confident that the defenses would prevail.
They might, therefore, easily be facing $25 billion in
potential liability (conceivably more), and with it bank-
ruptcy. They may not wish to roll these dice. That is
putting it mildly. They will be under intense pressure to
settle.56

Judge Friendly similarly referred to settlements in-
duced by a small probability of an immense judgment in
a class action as “blackmail settlements.”57
The majority brushes aside these legitimate business
interests and justifications by opining “[t]hat concerted
legal activity may be a successful means of vindicating
employees’ legal rights cannot be a legitimate reason to
disfavor it.” But I believe the majority errs here, in sev-
eral ways. First, as demonstrated above, claims aggrega-
tion poses an increased risk of liability even for meritless
claims, due to the simple mathematics of aggregating
hundreds or thousands of claims (that would not other-
wise exist) into one unitary claim. That aggregated claim
will pose a greater risk than any individual claim, regard-
less of whether it is merited or not. Second, it is axio-
matic under class action law that there is no “threshold”
or “gatekeeper” determination on the overall merits of a
case before the class determination is made (in either the
Rule 23 or the FLSA context). See, e.g. Eisen v. Carlisle
& Jacquelin, 417 U.S. 156, 177–178 (1974) (courts have
no authority to conduct a preliminary inquiry into the
merits of a suit in order to determine whether it may be
maintained as a class action).58 Third, because there is
no such threshold merits determination, class treatment
can and will be initially found justified for a significant
number of totally or partially meritless lawsuits. So, the
56 Matter of Rhone Poulenc Rorer, 51 F.3d 1293, 1298 (7th Cir.
1995), cert. denied 516 U.S. 867 (1995).
57 Henry J. Friendly, Federal Jurisdiction: A General View 120
(1973), quoted in Matter of Rhone Poulenc Rorer, above.
58 The Supreme Court recently clarified that courts have the authori-
ty—and sometimes must exercise it—to inquire into the merits to de-
termine whether the merits theory argued is amenable to classwide
treatment, but it still prohibits courts from rendering an actual merits
determination in order to decide class action suitability. See Wal-Mart
v. Dukes, 131 S.Ct at 2550–2552.
relevant question is not whether a class action in some
circumstances can vindicate employee rights (it can), but
whether the Board here sees any legitimate interest in
avoiding the certainty of aggregated, meritless suits of
the kinds Judges Posner and Friendly identified many
years ago. Today, the majority holds that employers have
no legitimate interest in avoiding such magnitudes of
unmerited liability. That is simply wrong. In contrast
with the legitimate employer interests at stake, the inter-
ference with Section 7 rights of these class action waiv-
ers, on the other hand, is relatively slight. They obvious-
ly do not interfere in any way with employees seeking to
improve their terms and conditions of employment who
wish to communicate their desires to each other or to
their employer. As noted above, they do not limit any of
the classically-recognized kinds of Section 7 rights at all.
The majority disagrees that the Section-7-neutral inter-
est of avoiding unwarranted aggregate liability is a prop-
er subject for Board consideration. The majority’s view
appears to be that it is Congress’ or the courts’ job to
deal with whatever problems this might pose, not ours.
But the Board has the statutory duty and functional re-
sponsibility to take account of employer interests in any
Section 7 balancing that it performs. What’s more, both
Congress and the Supreme Court have already told us via
the FAA and its associated jurisprudence that there is
nothing wrong with a party’s desire to avoid class litiga-
tion or class arbitration.59 Here, the Board is simply not
doing its job, while also ignoring legislative and judicial
recognition of the employer interest at stake.
Moreover, much of the conduct addressed by such
waiver provisions is not protected by Section 7 in the
first place, as shown above. Certainly, there is no cog-
nizable interference with Section 7 rights in choice of
forum agreements that channel disputes into arbitration
instead of court (and I do not read D. R. Horton or the
majority’s opinion to hold otherwise). And determining
the terms under which claims are to be litigated in the
chosen forum (i.e., individually) has only a minor effect
on Section 7 rights given the many other restrictions
those forums already impose on class or collective litiga-
tion under their own rules.60
Thus, Federal Rule of Civil Procedure Rule 20 allows
the permissive joinder of multiple plaintiffs only if they
59 See Stolt, Concepcion, Italian Colors, cited throughout.
60 See ANG Newspapers, 343 NLRB at 565 (employer’s legitimate
interest in protecting its newspaper against conflicts of interest justified
minimal interference with Sec. 7 rights of verbal caution to reporter
who spoke to city council on behalf of union and then started story
about city government); Caesar’s Palace, 336 NLRB at 272 (employ-
er’s legitimate interest in protecting integrity of investigation of illegal
drug activity in the workplace justified intrusion on Sec. 7 rights of rule
prohibiting discussion of investigation with coworkers).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 820
assert any right to relief jointly, severally, or in the alter-
native with respect to or arising out of the same transac-
tion, occurrence, or series of transactions or occurrences
and any question of law or fact common to all plaintiffs
will arise in the action. Section 216(b) of the FLSA pro-
vides for lawsuits for violation of its minimum wage and
overtime provisions “by any one or more employees for
and in behalf of himself or themselves and other employ-
ees similarly situated,” but “[n]o employee shall be a
party plaintiff to any such action unless he gives his con-
sent in writing to become such a party and such consent
is filed in the court in which such action is brought.”61
And, as discussed above, Federal Rule of Civil Procedure
Rule 23 governs class actions in federal court, displacing
the “usual rule” of individual litigation:

The class action is an exception to the usual rule that
litigation is conducted by and on behalf of the individu-
al named parties only. In order to justify a departure
from that rule, a class representative must be part of the
class and possess the same interest and suffer the same
injury as the class members. Rule 23(a) ensures that the
named plaintiffs are appropriate representatives of the
class whose claims they wish to litigate. The Rule’s
four requirements—numerosity, commonality, typicali-
ty, and adequate representation—”effectively ‘limit the
class claims to those fairly encompassed by the named
plaintiff’s claims.’”62

Given these extensive requirements, any additional
limitation on the use of class or collective actions flow-
ing from an individual arbitration agreement would have
at most a minimal effect on Section 7 activity.
In balancing the Section 7 rights and employer inter-
ests involved here, the Board also must consider the pro-
visions of Section 9(a) of the Act, which affords individ-
ual employees the “right at any time to present grievanc-
es to their employer and to have such grievances adjust-
ed, without the intervention of the bargaining representa-
tive . . . .”63 While this provision is cast as a qualifica-
tion of a union’s status as exclusive representative of the
unit, it reflects the broader concern of Congress “to safe-
guard from charges of violation of the act the employer
who voluntarily processed employee grievances at the
behest of the individual employee, and to reduce what
61 See generally Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. at
173.
62 Wal-Mart. v. Dukes, 131 S.Ct at 2550 (internal citations and quo-
tations omitted).
63 29 U.S.C. § 159(a). Sec. 9(a) also states that the adjustment must
not be inconsistent with the terms of a collective-bargaining agreement
then in effect and the bargaining representative must have been given
an opportunity to be present at the adjustment.
many had deemed the unlimited power of the union to
control the processing of grievances.”64 Although the
9(a) proviso does not impose on employers an affirma-
tive duty to individually adjust grievances, it suggests
that the Board should not be so quick to condemn those
employers who, like the Respondent here, choose to do
so through individual arbitration agreements. I concur
here specifically with the points made in Member
Miscimarra’s separate dissent in part C.
My reading of Section 8(a)(1) is also informed by the
Supreme Court’s holding in 14 Penn Plaza that a union
may waive the right of unit employees to litigate em-
ployment discrimination claims in court and instead re-
quire their submission to binding arbitration.65 Although
the Court plainly took it as a given that employees could
execute such a waiver individually, D. R. Horton and the
majority nevertheless dismiss 14 Penn Plaza on the
grounds that a union’s waiver of statutory rights “does
not stand on the same footing as an employment policy
. . . imposed on individual employees by the employer as
a condition of employment.”66 In my view, the Court
undercut this reasoning when it stated that “[n]othing in
the law suggests a distinction between the status of arbi-
tration agreements signed by an individual employee and
those agreed to by a union representative.”67 In any
event, I cannot so easily adopt the view that a union may
waive employees’ rights with regard to the litigation of
employment claims—even over an individual employ-
ee’s strenuous objection—but employees somehow can-
not waive the same rights on their own. That defies log-
ic.68
64 Black-Clawson Co. v. Machinists Lodge 355, 313 F.2d 179, 185
(2d Cir. 1962); see also H.R. 245, 80th Cong., 1st Sess. 7 (1947) (Sec.
9(a) “further adds to the freedom of workers by permitting them not
only to present grievances to their employers, as the old Board hereto-
fore has permitted them to do, but also to settle the grievances when
doing so does not violate the terms of a collective-bargaining agree-
ment, which the Board has not allowed”); H.R. 510, 80th Cong., 1st
Sess. 46 (1947), U.S.Code Congressional Service 1947, p. 1152 (“Both
the House bill and the Senate amendment amended Sec. 9(a) of the
existing law to specifically authorize employers to settle grievances
presented by individual employees or groups of employees, so long as
the settlement is not inconsistent with any collective bargaining con-
tract in effect.”); see generally Emporium Capwell Co. v. Western Addi-
tion Community Organization, 420 U.S. 50, 61 fn. 12 (1975).
65 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009).
66 D. R. Horton, at 2286.
67 14 Penn Plaza, above, 556 U.S. 247, 258.
68 The majority’s implicit suggestion that the mere presence of a un-
ion qua union makes nonwaivable rights waivable underscores the
faulty logic here. Sec. 7 rights exist independently of the presence of a
bargaining representative.
Although my colleagues protest that union representation makes a
difference in the workplace, they mistakenly accuse me of ignoring that
principle. Of course union representation makes a difference in the
workplace—but, contrary to the majority, that difference is not limited

MURPHY OIL USA, INC. 821
Contrary to the assertions in D. R. Horton, National
Licorice Co. v. NLRB,69 and J.I. Case Co. v. NLRB,70 do
not support a broader reading of Section 8(a)(1). In Na-
tional Licorice, the employer entered into contracts with
its employees in which the employees agreed that they
would not strike, demand a closed shop or signed agree-
ment with any union, and that an employee’s discharge
could not be submitted to arbitration or mediation.71 The
agreements themselves had been procured in response to
the employees’ designation of a union as their repre-
sentative for collective bargaining and were part of an
overall scheme to prevent unionization.72 In these cir-
cumstances, the Court held that the agreements unlawful-
ly “imposed illegal restraints upon the employees’ rights
to organize and bargain collectively guaranteed by ss 7
and 8 of the Act” and that the Board therefore could pro-
hibit the employer from enforcing them.73
None of the factors on which the Court relied in Na-
tional Licorice are present here. The Agreement and
Revised Agreement were not procured in response to
employees’ effort to unionize, and do not even arguably
restrain their right to organize and bargain collectively. I
respectfully disagree with D. R. Horton’s overbroad
characterization of the Court’s opinion in National Lico-
rice as invalidating “agreements that employees will pur-
sue claims against their employer only individually.”74
Instead, the Court condemned such agreements only in-
sofar as their purpose or effect was to foreclose any role
to a union’s undisputed power to waive rights employees otherwise
would possess. Consistent with the actual holdings of J.I. Case and
National Licorice, infra, if employees select union representation their
employer must bargain in good faith over a grievance procedure, re-
gardless of any previously-executed individual arbitration agreement,
and may not exclude the union from its statutory role in grievance
adjustment on the basis of such agreements or any other grounds. It is
the majority’s position, which effectively attempts to place unrepre-
sented employees on the same footing, not mine, that diminishes the
significance of union representation.
69 309 U.S. 350, 359–360 (1940).
70 321 U.S. 332 (1944).
71 The agreements also apparently provided for arbitration of wage
rates, but neither the Board nor the Court found this provision inde-
pendently unlawful or addressed whether the agreement was protected
by the FAA.
72 The Court and Board both held the contracts were simply an arti-
fice to eliminate support of the existing union, and, by doing so, inter-
fere with employees’ right to organize and bargain collectively:
The contracts, as the Board found, were not only procured
through the mediation of a company-dominated labor organiza-
tion, but they were the means adopted to “eliminate the Union as
the collective bargaining agency of its employees.” We think it
plain also that, by their terms, they imposed illegal restraints upon
the employees’ rights to organize and bargain collectively guaran-
teed by §§ 7 and 8 of the Act.
309 U.S. at 359–360.
73 National Licorice, 309 U.S. at 360.
74 D. R. Horton, at 2280.
for a union in the adjustment of the dispute. No evidence
or contention of that character is present here.75
J.I. Case is inapplicable for similar reasons. There, the
Court held that an employer could not lawfully refuse to
bargain collectively with a union that represented its em-
ployees on the basis of individual agreements previously
reached with those employees. That holding would be
applicable only if the Respondent relied upon the
Agreement or Revised Agreement as a basis for refusing
to bargain over terms and conditions of employment (in-
cluding a grievance arbitration procedure) with a duly
certified or lawfully recognized union representing its
employees. But again, no such facts are present here.
Moreover, although D. R Horton failed to acknowledge
it, J.I. Case specifically approved individual agreements
that do not have the proscribed effect on collective bar-
gaining. In language that was inexplicably omitted from
the D. R. Horton opinion, the Court stated that:

We know of nothing to prevent the employee’s, be-
cause he is an employee, making any contract pro-
vided it is not inconsistent with a collective agree-
ment or does not amount to or result from or is not
part of an unfair labor practice. But in so doing the
employer may not incidentally exact or obtain any
diminution of his own obligation or any increase of
those of employees in the matters covered by collec-
tive agreement.76

Because the individual arbitration agreements at issue
here have no effect on the Respondent’s collective bar-
gaining obligations, J.I . Case supports my view that they
were lawful.
The balance of Section 7 rights against legitimate em-
ployer interests is quite different, however, for employer
conduct that goes beyond the assertion in court of an
individual arbitration agreement and involves job-related
reprisals. The impact on Section 7 rights of discharge or
other job-related adverse action is significant. A princi-
pal aim of the Act is to protect employees against such
retaliation, and its prohibition creates no risk of conflict
with the FAA or any other Federal law.77 Accordingly, it
75 For this same reason, J. H. Stone & Sons, 33 NLRB 1014 (1941),
enfd. in relevant part 125 F.2d 752 (7th Cir. 1942) (individual contracts
with provision for arbitration of disputes tendered to employees shortly
after union’s request for recognition, at same time that wage increases
and other benefits granted, unlawful, where they had the purpose of
persuading employees that it was unnecessary to join or remain a mem-
ber of the union in order to obtain the benefits that normally result from
collective bargaining), is inapplicable here.
76 J. I Case, 321 U.S. at 339.
77 NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941) (“a
discriminatory discharge of an employee because of his union affilia-
tions goes to the very heart of the Act”); see also GC Memo 10-06,
above.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 822
should come as no surprise that all of the employee liti-
gation cases cited in D. R. Horton involve just this sort of
retaliation.78 Protecting employees from job-related re-
taliation is the mission of this agency. Determining the
terms under which litigation or arbitration is to be con-
ducted is not.
Focusing solely on the provisions of the Act and with-
out any consideration of the FAA issues presented, I also
agree that the 8(a)(1) balance weighs against prohibitions
on the joinder or consolidation of individual claims into a
single proceeding. Employees who join together as
named plaintiffs to litigate an employment-related claim
are plainly engaged in concerted activity for mutual aid
or protection. That concerted activity continues through-
out the litigation as the employees cooperate in the litiga-
tion of their claims. While there is no violation of Sec-
tion 8(a)(1) if an employer opposes joinder on other
grounds, a prohibition on joint litigation imposed as a
condition of employment prevents the exercise of this
Section 7 right and does not serve any of the legitimate
employer interests discussed above. Indeed, it may in
fact impose higher litigation costs than would be the case
if claims are consolidated.79
III. THE BOARD MUST ACCOMMODATE THE ACT
TO THE FAA AND OTHER STATUTES, INSTEAD
OF SUBORDINATING ALL OF THEM TO THE ACT
As shown, the maintenance of individual arbitration
agreements and their enforcement in court or arbitration
does not violate the Act merely because they include
class or collective action waivers. Even if this were
doubtful, and it is not, that would not end the inquiry.
The invalidation of such agreements raises at least a pos-
sible conflict with the FAA, which, as noted above, gen-
erally requires that such agreements be enforced “accord-
78 Brad Snodgrass, Inc., 338 NLRB 917, 922–927 (2003) (employ-
ees discharged because their union filed contractual grievances on their
behalf); Le Madri Restaurant, 331 NLRB at 269; Miami Systems Corp.,
320 NLRB 71, 77 (1995) (employer eliminated a shift, and accordingly
laid off one employee, “to retaliate against” union members for their
pursuit of a grievance), enf. denied in pertenant part and remanded 111
F.3d 1284 (6th Cir. 1997); United Parcel Services, 252 NLRB at 1015;
Clara Barton Terrace Convalescent Center, 225 NLRB 1028, 1032–
1035 (1976) (suspending an employee for writing an informal griev-
ance protesting nurses’ job assignments); Trinity Trucking & Materials
Corp., 221 NLRB 364 (1975); El Dorado Club, 220 NLRB 886, 888
(1975) (discipline and discharge of an employee because he participat-
ed in another employee’s successful arbitration), enfd. 557 F.2d 692
(9th Cir. 1977); Salt River Valley Water Users Assn., 99 NLRB at 849;
Spandsco Oil & Royalty Co., 42 NLRB at 942; Salt River Valley Water
Users Assn., 99 NLRB at 849.
79 For the reasons discussed below, however, the FAA nevertheless
does not allow the Board to find that an arbitration agreement violates
the Act on the grounds that it prohibits the joinder of claims.
ing to their terms.”80 When faced with a potential con-
flict between the Act and another federal statute, the
Board must endeavor to accommodate the two.81 And
the Supreme Court has already determined how conflicts
between the Act and the FAA must be resolved: the arbi-
tration agreement prevails unless invalidated by “such
grounds as exist at law or equity for the revocation of
any contract” (the FAA savings clause) or the FAA is
“overridden by a contrary congressional command.”82
Neither ground applies here. Accordingly, both class and
collective action waivers, and waivers on the joinder of
claims, may not be found to violate the Act when they
are included in an arbitration agreement to which the
FAA applies.
The Supreme Court has made clear that the FAA sav-
ings clause “permits agreements to arbitrate to be invali-
dated by generally applicable contract defenses, such as
fraud, duress, or unconscionability, but not by defenses
that apply only to arbitration or that derive their meaning
from the fact that an agreement to arbitrate is at issue.”83
But the Court has also made clear that the FAA savings
clause does not permit defenses that, while neutral on
their face, “would have a disproportionate impact on
arbitration agreements.”84 And the Court has made
equally clear that any provision requiring classwide liti-
gation is just such a defense.
Requiring that classwide procedures always be availa-
ble has an impermissible disproportionate impact on ar-
bitration agreements, because in practice its prohibition
falls more heavily on such agreements. To the extent
that this requirement means that employees must always
have access to class or collective actions in court, this
disfavors arbitration because “there is little incentive for
lawyers to arbitrate on behalf of individuals when they
may do so for a class and reap far higher fees in the pro-
cess. And faced with inevitable class arbitration, compa-
nies would have less incentive to continue resolving po-
80 CompuCredit, 132 S.Ct. at 669.
81 Southern Steamship Co. v. NLRB, 316 U.S. at 31.
82 Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226
(1987).
83 Concepcion, 131 S.Ct. at 1746.
84 Concepcion, 131 S.Ct. at 1747. As the Court explained (internal
citations and quotations omitted):
Although § 2’s saving clause preserves generally applicable contract
defenses, nothing in it suggests an intent to preserve state-law rules
that stand as an obstacle to the accomplishment of the FAA’s objec-
tives. As we have said, a federal statute’s saving clause cannot in rea-
son be construed as [allowing] a common law right, the continued ex-
istence of which would be absolutely inconsistent with the provisions
of the act. In other words, the act cannot be held to destroy itself.

MURPHY OIL USA, INC. 823
tentially duplicative claims on an individual basis.”85
Nor does the alternative of classwide arbitration save the
rule: “Requiring the availability of classwide arbitration
interferes with fundamental attributes of arbitration and
thus creates a scheme inconsistent with the FAA.”86
Either way, “employers would be discouraged from us-
ing individual arbitration.”87 Accordingly, “the FAA
requires not just compelling arbitration, but compelling
arbitration on an individual basis in the absence of a clear
agreement to proceed on a class basis.”88
The Act likewise does not evidence a “contrary con-
gressional command” with the textual clarity required to
override the FAA. In CompuCredit, the Court found no
such command in the federal Credit Repair Organization
Act (CROA) despite language in that law requiring con-
sumer disclosures reading “You have a right to sue a
credit repair organization that violates the Credit Repair
Organization Act” and a nonwaiver provision stating
“Any waiver by any consumer of any protection provid-
ed by or any right of the consumer under this subchap-
ter—(1) shall be treated as void; and (2) may not be en-
forced by any Federal or State court or any other person.”
As the Court observed:

When [Congress] has restricted the use of arbitration
in other contexts, it has done so with a clarity that far
exceeds the claimed indications in the CROA. See,
e.g., 7 U.S.C. § 26(n)(2) (2006 ed., Supp. IV) (“No
predispute arbitration agreement shall be valid or en-
forceable, if the agreement requires arbitration of a
dispute arising under this section”); 15 U.S.C. §
1226(a)(2) (2006 ed.) (“Notwithstanding any other
provision of law, whenever a motor vehicle fran-
chise contract provides for the use of arbitration to
resolve a controversy arising out of or relating to
such contract, arbitration may be used to settle such
controversy only if after such controversy arises all
parties to such controversy consent in writing to use
arbitration to settle such controversy”); cf. 12 U.S.C.
§ 5518(b) (2006 ed., Supp. IV) (granting authority to
the newly created Consumer Financial Protection
Bureau to regulate predispute arbitration agreements
in contracts for consumer financial products or ser-
vices). That Congress would have sought to achieve
the same result in the CROA through combination of
the nonwaiver provision with the “right to sue”
phrase in the disclosure provision, and the references
85 Id. at 1750; see also Southland Corp. v. Keating, 465 U.S. at 7
(“Contracts to arbitrate are not to be avoided by allowing one party to
ignore the contract and resort to the courts.”).
86 Id. at 1748.
87 D. R. Horton v. NLRB, 737 F.3d at 359.
88 Jasso v. Money Mart Express, 879 F.Supp. 2d at 1048–1049.
to “action” and “court” in the description of damages
recoverable, is unlikely.89

Likewise, the Court later found no “contrary congres-
sional command” in the federal antitrust laws:

The Sherman and Clayton Acts make no mention of
class actions. In fact, they were enacted decades be-
fore the advent of Federal Rule of Civil Procedure
23, which was designed to allow an exception to the
usual rule that litigation is conducted by and on be-
half of the individual named parties only. The parties
here agreed to arbitrate pursuant to that “usual rule,”
and it would be remarkable for a court to erase that
expectation.90

And the explicit provision for opt-in collective actions in
the FLSA does not establish a contrary congressional
command either.91 Simply put, under the binding Su-
preme Court precedent on how to divine and interpret
potential conflicts with the FAA, we should look to the
text of our statute, see whether it expressly restrains or
bans arbitration, and defer to the FAA if, as here, it does
not.
Applying these principles, as we must, leads inescapa-
bly to the conclusion that if the CROA, the FLSA, and
the antitrust laws do not express a “contrary congression-
al command” with the requisite clarity, then neither does
the Act. Like the antitrust laws, the Act “make[s] no
mention of class actions” and was enacted long before
the advent of Rule 23.92 The Act does not address the
use of arbitration agreements even to the same degree as
was found insufficient in the CROA, much less with the
“clarity” of the express prohibitions on predispute arbi-
tration agreements found in the federal statutes cited with
approval in CompuCredit.93 The Act does not address
the enforceability of such agreements at all. Consistent
with Italian Colors and CompuCredit, any conflict be-
89 CompuCredit, 132 S.Ct at 672–673.
90 Italian Colors, 133 S.Ct. at 2309 (internal citations and quotations
omitted). Italian Colors acknowledged that an arbitration agreement
also may be unenforceable if they prevent the effective vindication of a
“statutory cause of action in the arbitral forum,” but no party contends
that the agreements at issue here prevent the Charging Parties from
effectively vindicating their own FLSA claims. Id. at 2310–2311.
91 Walthour v. Chipio Windshield Repair, LLC, 745 F.3d at 1326;
Sutherland v. Ernst & Young LLP, 726 F.3d at 290; Owen v. Bristol
Care, Inc., 702 F.3d at 1050; Carter v. Countrywide Credit Industries,
Inc., 362 F.3d at 294; Adkins v. Labor Ready, Inc., 303 F.3d at 496.
92 Italian Colors, 133 S.Ct at 2309; see also fn. 35, above.
93 D. R. Horton v. NLRB, 737 F.3d at 360 (NLRA does not contain
contrary Congressional command overriding the FAA); Jasso v. Money
Mart Express, 879 F. Supp.2d at 1048–1049 (same); see also Walton v.
Rose Mobile Homes, above (recognizing that Court has found no con-
trary Congressional command in every case where arbitration not ex-
plicitly excluded).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 824
tween the Act and the FAA with respect to class or col-
lective action waivers or waivers of the joinder of claims
therefore must be resolved in favor of arbitration.94
Writing before Italian Colors and CompuCredit were
decided, the D. R. Horton Board viewed the interplay of
the FAA and the Act very differently. According to D.
R. Horton, there is no cognizable conflict between the
Act and the FAA because: (1) the prohibition on the
waiver of the Section 7 right to class or collective litiga-
tion discerned in D. R. Horton would apply equally to a
contract that did not provide for arbitration; (2) arbitra-
tion agreements are not enforceable if they “require a
party to forgo the substantive rights afforded by the stat-
ute,”95 and individual arbitration agreements waive sub-
stantive rights under the Act; and (3) the FAA must yield
to the Act because individual arbitration agreements that
include class action waivers are contrary to the Norris-
LaGuardia Act (NLGA), 29 U.S.C. § 101, et seq.96 With
the additional benefit of the Supreme Court’s recent
guidance, it is even clearer that all of these contentions
are meritless.
First, D. R. Horton erred insofar as it narrowly con-
strued the FAA to allow rules that on their face apply
equally to contracts that do not involve arbitration. As
noted above, that view of the FAA was rejected by the
Supreme Court post-D. R. Horton and therefore must be
abandoned.97
Second, the Supreme Court has never held that an
agreement to arbitrate a statutory claim is invalid to the
extent that it divests a party of substantive rights under
any conceivable statute; instead, the requirement is only
that “[b]y agreeing to arbitrate a statutory claim, a party
does not forgo the substantive rights afforded by the stat-
ute; it only submits to their resolution in an arbitral, ra-
ther than a judicial, forum.”98 The substantive rights
referred to are thus those arising under the statute that
gave rise to the claim. This exception to the FAA there-
94 The Act, of course, does contain the requisite clear Congressional
command with respect to any provision, whether contained in an arbi-
tration agreement or otherwise, that purports to restrict access to the
Board with respect to the filing or litigation of unfair labor practice
charges. See, e.g., 29 U.S.C. § 160 (The Board’s power to prevent
unfair labor practices “shall not be affected by any other means of
adjustment or prevention that has been or may be established by
agreement, law, or otherwise . . . .”).
95 Gilmer v. Interstate/Johnson-Lane Corp., 500 U.S. 20, 26 (1991).
96 D. R. Horton, at 2285–2288.
97 See, e.g., Long v. BDP International, 919 F.Supp. 2d at 852 fn. 11
(D. R. Horton contradicts the Supreme Court’s holding in CompuCred-
it); Carey v. 24 Hour Fitness, 2012 WL 4754726 (S.D.Tex. 2012)
(same); Iskanian v. CLS Transport of Los Angeles,142 Cal. Rptr. 2d. at
382 (same); Zabelny v. Cashcall, Inc., 2014 WL 67638, 21 Wage &
Hour Cas.2d (BNA) 1556 (D.Nev. Jan 08, 2014) (same).
98 Gilmer, 500 U.S. at 26 (quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985) (emphasis added).
fore cannot be invoked to invalidate an individual arbi-
tration agreement’s application to claims arising under
other statutes on the theory that the arbitration agreement
abrogates rights under the Act.
Third, and most importantly, the courts’ repeated
recognition that the type of litigation rights that D. R.
Horton discusses are inherently procedural ones under
the underlying statutes means that the Board is simply
off-base by declaring them “substantive” under an
NLRA label. This error results in the tautology that such
rights are Section 7 rights because they are “substantive,”
and thus Section 7 protects them as substantive rights.
The Board cannot make something that walks like, looks
like, and sounds like a procedural duck into a substantive
swan, merely by declaring that it falls into the ambit of
Section 7. See above, at pp. 36–38. Indeed, this point is
no more dramatically underscored than by the results of
the majority’s reasoning in regard to Rule 23 class ac-
tions. Here, the majority’s holding effectively causes
Rule 23 to supersede the FAA by now allowing Rule 23
pleadings to override class action waivers in arbitration
agreements. But this is something neither Congress nor
the courts themselves could do, even if they wrote an
explicit amendment to Rule 23 mandating that result.
Because Rule 23 was passed under the Rules Enabling
Act, 28 U.S.C. §§ 2071, et seq., it “shall not abridge,
enlarge or modify any substantive right.” Id., § 2072(b).
Overriding the FAA certainly is an abridgement of a par-
ty’s rights—both under the FAA and under that party’s
contract—to have its arbitration agreement enforced.
Simply put, Section 7 cannot enlarge Rule 23 beyond the
ability of Rule 23’s own authorizing statute. See Wal-
Mart Stores v. Dukes, 131 S.Ct. at 2561 (holding that the
Rules Enabling Act precludes Rule 23 from abridging,
enlarging or modifying any substantive right); Parisi v.
Goldman, Sachs & Co., 710 F.3d 483, 487–488 (2d Cir.
2013) (“Rule 23 cannot create a non-waivable, substan-
tive right to bring” a pattern-or-practice class action
claim under Title VII, even though a class action would
be the only way a private litigant could conceivably
bring such a claim).
IV. NONE OF THE MAJORITY’S ASSERTED RATIONALES
WORK TO SALVAGE D. R. HORTON
A. A Class Action Waiver is not the “Waiver of
Statutory Remedies or Rights” That Mitsubishi
Motors Would Prohibit
Pursuing their novel approach, the majority here at-
tempts to salvage D. R. Horton in two ways. First, it
argues that the Supreme Court in Italian Colors has in-
structed that a valid arbitration agreement under the FAA
may not require a party to prospectively waive its “right

MURPHY OIL USA, INC. 825
to pursue statutory remedies.” 133 S. Ct. at 2310 (citing
Mitsubishi Motors, 473 U.S. at 637, fn. 19). Thus, the
majority concludes that the FAA cannot possibly allow
an agreement with a provision precluding class/collective
action procedures, because that would be a waiver of
Section 7 rights and remedies. But, as demonstrated ear-
lier (see pp. 37–38, supra), the Supreme Court forbade
interpreting the Federal Arbitration Act to allow “a
common law right, the continued existence of which
would be absolutely inconsistent with the provisions of
the act. In other words, the act cannot be held to destroy
itself.’” Concepcion, 131 S.Ct. at 1748. The majority
attempts to cabin Italian Colors’ holding here into a Su-
premacy Clause pigeonhole, because the principle origi-
nally arose in Concepcion, a case that pitted the FAA
against state law. But the rule of “no self destruction” is
patently a general principle of FAA interpretation that by
definition applies also to Federal statutes, too, not just
where the FAA conflicts with state law doctrines, like in
Concepcion. How do we know? Italian Colors applied
this principle to solve an asserted conflict between the
FAA and Federal antitrust law, namely section 1 of the
Sherman Act and section 4 of the Clayton Act. There-
fore, this interpretive principle also applies to the FAA’s
interplay with Section 7’s substance, and Mitsubishi Mo-
tors accordingly cannot become a Trojan Horse allowing
Section 7’s purported substance to destroy the FAA.
The majority discounts this holding of Italian Colors,
even though it clearly dealt with a federal-statute-versus-
FAA conflict question, by asserting that Section 7 has
unique, important goals and is “sui generis.”99 By that
reasoning, every Federal statute is sui generis, and the
Supreme Court’s FAA conflict precedents mean nothing,
unless and until the Court actually determines a FAA
case involving that particular statute. That is not how we
should treat binding case law handed down from the na-
tion’s highest court, especially on a statutory construc-
tion question outside of our expertise.
The majority also cannot refute that the pertinent
“statutory remedies” held unwaivable under Mitsubishi
are the remedies arising from the baseline employment
statute that underlies the litigation, and not process
rights concerning how that claim is adjudicated, i.e.,
whether the claim should be litigated on an individual or
class action basis. The majority states that they “cannot
agree” with this reading of the Mitsubishi exception, but
instead advances an interpretation of this exception that
no court has embraced and that contradicts clear guid-
ance from the Supreme Court itself. In Mitsubishi, the
99 I do not understand why, in the abstract, Federal antitrust law is
somehow less unique or important than the Act.
Court found that the plaintiff could effectively vindicate
its statutory antitrust cause of action in the arbitral forum
after assuring itself that the arbitrator would apply Amer-
ican law in deciding that claim and, therefore, that the
arbitration agreement did not operate as a prospective
waiver of the plaintiff’s antitrust claims. In the Court’s
own words, “so long as the prospective litigant effective-
ly may vindicate its statutory cause of action in the arbi-
tral forum, the statute will continue to serve both its re-
medial and deterrent function.” In Gilmer and 14 Penn
Plaza, the Court looked to statutory rights under the
ADEA in determining whether an agreement to arbitrate
such claims was valid, finding in 14 Penn Plaza that an
agreement to arbitrate ADEA claims did not prevent their
effective vindication because it did not “waive the statu-
tory right to be free from workplace age discrimination;
it waives only the right to seek relief from a court in the
first instance.” And in AT&T Mobility, the Court like-
wise looked to the scope of substantive antitrust law in
determining whether the plaintiff could effectively vindi-
cate its antitrust claim in arbitration. These cases amply
demonstrated that the correct statutory remedy to exam-
ine is the one supplying the cause of action, not Section
7. Because the agreements at issue in this case allow
employees to vindicate their “statutory cause of action,”
i.e., their FLSA claims, the Mitsubishi exception does not
apply.
The majority raises the specter that if the FAA is al-
lowed to prevail, then employers could require employ-
ees to waive other Section 7 rights such as the right to
strike by including a strike waiver provision in an arbi-
tration agreement. My colleagues tilt at a straw man of
their own making here, because their analogy does not
work. Employees can strike, or picket, or engage in a
consumer boycott in support of a dispute with their em-
ployer while at the same time submitting the dispute to
arbitration.100 One does not preclude the other. But a
party logically cannot at the same time both arbitrate a
dispute and also have it decided by a court, or have the
dispute resolved by both individual and also class arbitra-
tion. In other words, a waiver of the right to litigate in
court, or of class arbitration, is thus enforceable under
the FAA as part and parcel of the basic agreement to
arbitrate, while a waiver of the right to strike is not.
Throughout its opinion, the majority claims that the
Act’s goal of labor peace makes it different than other
statutes for purposes of FAA conflict resolution. But this
argument lacks merit for two reasons. The first is that
100 The Supreme Court has implied a no strike pledge from a collec-
tively bargained agreement to submit a dispute to arbitration, but that
principle has no application here. See generally Teamsters Local 174 v.
Lucas Flour, 369 U.S. 95 (1962).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 826
the Supreme Court does not look to the objective of the
statute in counterpoise with the FAA, but its express text,
as explained above. As noted, there is no express textual
ban of either class arbitration waivers or individual arbi-
tration agreements in the Act. Second, labor peace will
absolutely not be threatened by enforcing arbitration
agreements with employees. Congress has consciously
determined otherwise in the FAA, as it already made the
judgment that the FAA should apply to most employ-
ment contracts—indeed, the only classes of workers to
be exempted from the FAA were transportation workers,
as seen in Section 1 of the FAA. Circuit City Stores, Inc.
v. Adams, 532 U.S. 105 (2001); 9 U.S.C. § 1. And, the
Court has made the judgment that arbitration is a perfect-
ly suitable method of adjusting both individual and col-
lective employee issues in Penn Plaza, above, and the
Steelworkers Trilogy.101 In the final analysis, the majori-
ty’s “labor peace” argument actually boils down to this:
it is class actions that are now somehow necessary to
ensuring labor peace, even though they were unheard of
in 1935, when the Act was passed, and even though the
Court has never condemned individual-specific arbitra-
tion agreements, like the Agreement here, that do not
seek to supplant a union’s role as a bargaining and griev-
ance-resolution representative. But class actions are no
more essential to securing labor peace than any other
procedural litigation rule, which is to say, not at all.
B. Section 10(a) is Neither an Independent nor
Supplemental Basis to Locate a Congressional
Command Vitiating a Class Waiver Arbitration
Provision
The second way the majority attempts to avoid Italian
Colors is to take refuge in Section 10(a) of the Act, argu-
ing that it prohibits all class action waiver arbitration
provisions, because they “affect the Board’s enforcement
of Section 7” by restricting protected concerted activity
in a manner that would not be permissible if not embod-
ied in an arbitration agreement. Section 10(a) states in
relevant part that the Board’s power to prevent unfair
labor practices “shall not be affected by any other means
of adjustment or prevention that has been or may be es-
tablished by agreement, law, or otherwise . . . .” The
majority claims that this language, combined with the
Act’s Section 7 protection of “concerted activity for mu-
tual aid or assistance,” is enough of an express Congres-
sional command to vitiate an otherwise enforceable class
action waiver.
This argument fails for several reasons. Principally,
this argument fails obviously because the words or
phrases “class action,” “class action waiver,” or “arbitra-
101 See fn. 112, infra.
tion agreement” nowhere appear or are combined with
“prohibit, “limit,” “void,” or any kind of express re-
strictions one would find necessary to override the FAA,
after reviewing the guidance of Italian Colors. Second,
it is obvious that the relatively generic term “concerted
activity” cannot function as an express obliteration of
class action waivers. Italian Colors itself held that even
a statutory provision that expressly provides for “collec-
tive actions” within its text is not enough to act as an
express Congressional command prohibiting a class ac-
tion waiver:

A pair of our cases brings home the point. In Gilmer,
supra, we had no qualms in enforcing a class waiver
in an arbitration agreement even though the federal
statute at issue, the Age Discrimination in Employ-
ment Act, expressly permitted collective actions.

133 S.Ct. at 2311. Thus, there is nothing in the text of
the Act, unfortunately for the majority, that would come
close to prohibiting arbitration agreements under the rea-
soning of Italian Colors, a case which binds us on prin-
ciples of statutory construction wherever conflict be-
tween the FAA and another statute may exist. Nor can
the Board simply look back to its earlier decisions inter-
preting Section 7 in the context of group litigation to
“bootstrap” its way into creating an “express Congres-
sional command” to set aside arbitration agreements.
Simply put, we are not Congress, and our case adjudica-
tions cannot create that command.
Whether the majority chooses to rely on Section 7,
Section 10, or some combination thereof, the ultimate
point is that nothing in the Act specifically prohibits
class action waivers or arbitration agreements in general.
The current Supreme Court jurisprudence on FAA con-
flict construction—which binds the Board—looks to the
actual text of the actual statute and not to the Board’s
interpretation of prior Board or court decisions about the
statute. It especially does not look to argumentative
gloss by the Board about what the statute means, which
comes solely from an interpretation of prior cases that
had nothing to do with class action waivers. That is the
point. We are not Congress. We cannot, by the argu-
mentative fulcrum of interpreting a selective succession
of earlier court or Board decisions, now declare that Sec-
tion 7 (or 10) bans class action waivers. And, whether
before or after D. R. Horton, no Supreme Court decision
has ever held that the Act prohibits class action waivers
in particular or renders individual-specific arbitration
agreements totally void as a general proposition. The
majority cannot now use interpretations of prior cases as
a bootstrap to then argue that a complete prohibition ex-
ists in the Act, when that prohibition is not in the Act’s
MURPHY OIL USA, INC. 827
text. Relying on extrapolations from prior cases is not
relying on statutory text.
Third, my colleagues seriously err in reading Section
10(a) as a substantive right of any cognizable sort. Sec-
tion 10(a) establishes the superior authority of the Board,
over other tribunals, to prevent unfair labor practices.
Hammontree v. NLRB, 925 F.2d 1486, 1491–1492 (D.C.
Cir. 1991). It does not prohibit actions by employees,
employers, or unions that may then in turn affect whether
an unfair labor practice has been committed. If it did,
much of the Act’s jurisprudence would be turned on its
head. For example, no-strike clauses would obviously be
unlawful, because employers and unions could not “af-
fect the Board’s enforcement of section 7” by agreeing to
a no-strike clause. But these clauses are lawful. See,
e.g., Fineberg Packing Co., 349 NLRB 294 (2007), affd.
546 F.3d 719 (6th Cir. 2008) (discharge of employees
who violated contractual no-strike clause). Similarly,
employers could not adopt rules denying off-duty em-
ployees access to the employer’s premises, because such
rules would undoubtedly “affect the Board’s enforcement
of Section 7.” But they can adopt such rules. See Tri-
County Medical Center, 222 NLRB 1089 (1976) (off-
duty access rule). Most of the Board’s prior jurispru-
dence shows that this novel interpretation of Section 10
has never been accepted.
C. The Majority’s Arguments do not Make the
Norris-LaGuardia Act Relevant Here
The majority, just as D. R. Horton did, relies on the
Norris-LaGuardia Act, but nothing there requires a dif-
ferent result. That statute does state that it is the public
policy of the United States that employees “shall be free
from the interference, restraint, or coercion of employers
of labor, or their agents, in . . . self-organization or in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.”102 It fur-
ther declares unenforceable in any federal court “any
undertaking or promise . . . in conflict with the public
policy . . . .” described above, including promises not to
join or remain a member of a union, or to withdraw from
an employment relation in the event an employee later
joins a union—commonly termed “yellow dog con-
tacts.”103 And it divests the federal courts of power to
enjoin any person from “[b]y all lawful means aiding any
person participating or interested in any labor dispute
who is being proceeded against in, or is prosecuting, any
102 29 U.S.C. § 102.
103 29 U.S.C. § 103. Agreements not to join a union “were so obnox-
ious to workers that they gave these required agreements the name of
‘yellow dog contracts.’” Lincoln Union v. Northwestern Co., 335 U.S.
525, 534 (1949).
action or suit in any court of the United States or of any
State.”104 Combining these various provisions, D. R
Horton concluded that the NLGA “protects concerted
employment-related litigation by employees against fed-
eral judicial restraint based upon agreements between
employees and their employer.”105 I respectfully disa-
gree.
I am not aware of a single case holding that an indi-
vidual-specific arbitration agreement violates the NLGA,
and no such case is cited in the majority opinion or D. R.
Horton itself. In light of the Supreme Court’s repeated
and emphatic approval of individual arbitration agree-
ments, I reject any implication by the majority or in D. R.
Horton that they may be condemned as “yellow dog”
contracts.106 To the contrary, decades of precedent plain-
ly hold that the NLGA “has no application to cases
where a mandatory injunction is sought to enforce a con-
tract obligation to submit a controversy to arbitration
under an agreement voluntarily made.”107 Thus, “[a]n
agreement to arbitrate is not one of those contracts to
which the Norris LaGuardia Act applies.”108 Consistent
104 29 U.S.C. § 104.
105 D. R. Horton, at 2282.
106 Id. at 5–6. As shown above, an individual arbitration agreement
containing a class or collective litigation waiver does not interfere with
the right to engage in concerted activity for the purpose of mutual aid
or protection, properly understood. Part of the reason why this is so is
that, as previously stated, a class or collective litigation waiver, alone,
does not interfere with any employee’s ability to assist other employees
in pursuing Federal court litigation against their employer by, for ex-
ample, sharing information or litigation expenses. Accordingly, there is
simply no merit to D. R. Horton’s view that such provisions interfere
with concerted activity for mutual protection or prevent any party from
aiding an individual involved in litigation related to a labor dispute.
107 Local 205 v. General Electric Co., 233 F.2d 85, 90 (1st Cir.1956)
(quoting Textile Workers Local 1029 v. American Thread Co., 113
F.Supp. 137, 142 (D.Mass. 1953)), affd. 553 U.S. 547 (1957).
As the Court explained in Boys Markets, Inc. v. Retail Clerks Local
770, 398 U.S. 235, 250 (1970), the NLGA “was responsive to a situa-
tion totally different from that which exists today,” where federal courts
“were regarded as allies of management in its attempt to prevent the
organization and strengthening of labor unions; and in this industrial
struggle the injunction became a potent weapon that was wielded
against the activities of labor groups.” Thus, the real focus of the
NLGA was “to remedy the growing tendency of federal courts to enjoin
strikes.” Jacksonville Bulk Terminals, Inc. v. Longshoremen Assn.. 457
U.S. 702, 708 (1982). The “labor disputes” at issue in a case like here
do not involve strike activity and thus, do not implicate the true focus
of the NLGA. Moreover, in Boys Markets, the Court held that the
NLGA should not be read to deprive federal courts of jurisdiction to
enjoin a strike in violation of a no-strike pledge over an arbitrable dis-
pute, consistent with the Congressional policy in favor of arbitration
reflected in later enactments. To the extent necessary, a similar ac-
commodation is called for here.
108 Morvant v. P.F. Chang’s China Bistro, 870 F.Supp.2d at 844; see
also Appelbaum v. AutoNation Inc., 2014 WL 1396585 (C.D.Cal. 2014)
(neither the NLRA nor the NLGA renders class action waivers in arbi-
tration agreements unenforceable).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 828
with this precedent, the Fifth Circuit summarily dis-
missed the Board’s NLGA reasoning as “unpersuasive”
in D. R. Horton v. NLRB.109 I respectfully submit that
the Board should defer to this established judicial prece-
dent and abandon its unsupported interpretation of the
NLGA. Here, while the majority terms the Fifth Cir-
cuit’s treatment of the NLGA “troubling,” the only au-
thority they can muster for their contrary view is a law
review article whose authors openly disparage individu-
al-specific arbitration agreements and the Supreme
Court’s decisions upholding them.110 Rather than rely on
such views, the Board should instead defer to the inter-
pretation of the NLGA adopted by the courts, as the tri-
bunals charged with its enforcement. There is no valid
justification for the majority’s refusal to do so.
The last, insurmountable problem for the majority is a
comparison of the texts of the two statutes themselves.
As noted above, the NLGA prohibits a court from enjoin-
ing any person who is “[b]y all lawful means aiding any
person participating or interested in any labor dispute
who . . . is prosecuting, any action or suit . . . .” 29
U.S.C. § 104 (italics added). First, employees who are
merely identified in lawyer-drafted pleadings as “puta-
tive class members” rather than having actively joined
the lawsuit at hand do not readily fit into the categories
of “participating” or “interested in” that lawsuit. Even if
they did, there is a more fundamental problem with the
majority’s strained NLGA coverage argument—the class
action plaintiff who ignores an arbitration agreement is
not covered by the NLGA, by definition.
I start with the language of the FAA here. Boiled
down to its core, the FAA provides that “a written provi-
sion in . . . a contract evidencing a transaction involving
commerce to settle by arbitration a controversy thereafter
arising out of such contract or transaction….shall be val-
id, irrevocable, and enforceable . . . .” 9 U.S.C. § 2. It is
elementary that a person who simply ignores the terms of
an arbitration agreement to file a lawsuit instead acts in
contravention of that controlling principle of Federal
contract law. Simply stated, under the text of the FAA,
ignoring a validly formed, FAA-protected arbitration
agreement in favor of going to court constitutes a breach
of the agreement. Allowing this breach to stand, as the
majority’s analysis would, undermines the legal com-
mand of the FAA. Here, the relevant section of the
109 737 F.3d at 362 fn. 10.
110 Charles A. Sullivan & Timothy P. Glynn, Horton Hatches the
Egg: Concerted Activity Includes Concerted Dispute Resolution, 64
Ala. L. Rev. 1013, 1065–1066 (2013) (motivation for individual arbi-
tration agreements “—to deter claims—is sufficiently apparent else-
where that those who do not see it either have not been paying attention
or are looking the other way . . . whether the majority’s thinking in
[Concepcion] was right or wrong . . . .”).
NLGA protects only those who use “lawful means” to
assist others who are participating in a labor dispute.
Intentionally breaching one’s obligations under an arbi-
tration agreement, as defined by the FAA, cannot ration-
ally be deemed a lawful means under the NLGA.111
The majority further reasons here that the NLGA must
displace the FAA because the NLGA renders conflicting
laws void. But, as discussed above, there is no conflict
because the NLGA only protects “lawful means.”
Moreover, the majority’s argument is overbroad even if
there were some tension between the two statutes. Under
the majority’s logic, any statute would simply be re-
pealed where it would otherwise prohibit conduct that
happened to assist others in a labor dispute. For exam-
ple, if a person violated an existing Federal law to try to
assist an organizing campaign, the NLGA would not
supplant the statute that made the act illegal. The NLGA
does not make an unlawful act suddenly lawful, simply
because that act assists someone else in a labor dis-
pute.112
V. D. R. Horton is Unwise Policy and Should be
Rejected on That Basis Alone
D. R. Horton must be rejected because it is contrary to
the Act and cannot be reconciled with the overriding
Federal policy favoring arbitration embodied in the FAA.
But it is also unsupportable on policy grounds. It at-
tempts to restrict the use of arbitration despite decades of
precedent clearly favoring arbitration as a means of
peacefully resolving labor disputes. And it takes that
step for the purpose of determining how litigation will be
conducted in court or before an arbitrator, an area
uniquely within the competence of those tribunals in
which this agency has no expertise or role to play.
The Supreme Court has repeatedly held that Federal
courts must defer to the arbitration process, most notably
in the Steelworkers Trilogy.113 The Board likewise has
recognized that it must “give hospitable acceptance to the
arbitral process” in order to fully effectuate the national
111 It is no answer to say that the FAA’s savings clause imports the
NLGA as a “ground[] as exist[s] at law . . . for the revocation of any
contract” in order to short-circuit the FAA’s coverage. The Supreme
Court held in Italian Colors that the savings clause cannot be interpret-
ed to undermine FAA coverage this way in the context of Federal stat-
utes, just as it had held in Concepcion with state unconscionability
rules. See above at pp. 36–37, 53–55.
112 See Southern Steamship Co. v. NLRB, 316 U.S. 31 (1942).
113 Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593
(1960) (arbitrator’s decision must be enforced by courts if it draws its
essence from the contract); Steelworkers v. Warrior & Gulf Navigation
Co., 363 U.S. 574 (1960) (all doubts resolved in favor of arbitration);
Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960) (dispute arbi-
trable if claim is governed by contract on its face).

MURPHY OIL USA, INC. 829
labor policy.114 And the Supreme Court has extended the
same extraordinary deference to arbitration agreements
that do not involve a bargaining representative. Sweep-
ing aside objections to such agreements as contracts of
adhesion, unconscionable, exculpatory agreements and
the like, the Court has repeatedly held that “courts must
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.”115
D. R. Horton’s view of individual arbitration agree-
ments stands in marked contrast to this established body
of law. As noted, it invalidates innumerable individual
arbitration agreements and, in tandem with today’s opin-
ion, declares their enforcement in court to be an unfair
labor practice. And it attempts to undermine the entire
framework for arbitration agreements that Congress es-
tablished in the FAA, as elucidated by the Supreme
Court in an unbroken series of cases over the past 35
years. As noted, the Court has held that Congress in-
tended arbitration to be available to resolve claims under
a variety of Federal laws.116 The Court has also deter-
mined, after thorough consideration, that Congress in-
tended the FAA to apply to State law claims filed in state
court, and to preempt state laws limiting access to arbi-
tration.117 D. R. Horton plainly undermines this entire
regime—a regime that the Supreme Court consciously
and painstakingly worked out in a stream of cases over
decades—in the context of federal employment litiga-
tion. Under the guise of protecting and promoting the
Act, D. R. Horton also effectively undermines the simi-
larly long-lived body of Supreme Court’s jurisprudence
on state antiarbitration rules, by indirectly resurrecting
the state law prejudice against arbitration that the FAA
was enacted to prevent.
114 International Harvester Co., 138 NLRB 923, 926–927 (1962),
enfd. sub nom. Ramsey v. NLRB, 327 F.2d 784 (7th Cir.), cert. denied
377 U.S. 1003 (1964).
115 Italian Colors,133 S.Ct. at 2309 (internal citations and quotations
omitted); see also Concepcion, 131 S.Ct. at 1740 (individual arbitration
not exculpatory or unconscionable); Gilmer, 500 U.S. at 20 (rejecting
claims that arbitration unfair, or that arbitration agreements should not
be enforced in employment setting due to asserted unequal bargaining
power).
116 CompuCredit, 132 S.Ct at 672 (CROA); Gilmer, 500 U.S. at 20
(ADEA); Italian Colors, 133 S.Ct. at 2309 (antitrust laws).
117 Southland, 465 U.S. at 1 (antiwaiver provision of State franchise
law preempted insofar as it barred enforcement of arbitration agree-
ment); Concepcion, 131 S.Ct. at 1740 (FAA preempts state rule hold-
ing class arbitration waivers unenforceable as applied to arbitration
agreements); Perry v. Thomas, 482 U.S. 483 (1987) (State law exempt-
ing wage collection laws from arbitration agreements preempted by
FAA)); Preston v. Ferrer, 552 U.S. 346 (2008) (FAA preempts State
law giving State administrative agency exclusive jurisdiction over
action for breach of contract with talent agent).
D. R. Horton’s protestation that it bears “no hostility”
to individual arbitration despite all this is difficult to rec-
oncile with its suggestion that such agreements are com-
parable to “yellow dog” contracts.118 And what end is
served by this abrupt departure from decades of “hospi-
table acceptance?” Class arbitration has been con-
demned by the Supreme Court as inconsistent with the
arbitral process, as noted above. Accordingly, D. R.
Horton is really about securing access to “a judicial fo-
rum for class and collective claims.”119 Even setting
aside the many insurmountable obstacles to the applica-
tion of D. R. Horton discussed above, the fact remains
that access to those procedures is controlled by the courts
and by the detailed provisions of other federal statutes
and the Federal Rules of Civil Procedure. See sections
III, and IV, supra.
Given those detailed requirements, and the difficulty
many plaintiffs experience in satisfying the requirements
of Rule 23 in particular,120 in the end D. R. Horton boils
down to an express insistence that employees must have
what is in practice a very limited “opportunity to pursue
. . . such claims of a class or collective nature as may be
available to them under Federal, State, or local law.”121
But the Supreme Court has already rejected that very
proposition—the proposition “that federal law secures a
nonwaivable opportunity to vindicate federal policies by
satisfying the procedural strictures of Rule 23 or invok-
ing some other informal class mechanism in arbitra-
tion.”122 The conflict between D. R. Horton and binding
Supreme Court precedent could not be plainer.
There is but one plausible outcome to this conflict.
While it rages, however, the cost to this agency will be
immense. D. R. Horton commits the Board and the Gen-
eral Counsel to engage in an ever-expanding “roving
commission” by either directly or de facto intervening in
each of the thousands of workplaces where individual
arbitration agreements are in place.123 Today’s decision
escalates the conflict by requiring the General Counsel,
upon the filing of a charge, to intervene in any of the
thousands of employment litigation cases where one of
those agreements is invoked. The Board, too, will be
118 D. R. Horton, at 2281, 2289.
119 Id. at 12.
120 See, e.g., Stiller v. Costco Wholesale Corp., ___ F.Supp. 2d ___,
No. 3:09-cv-2473-GPC-BGS (S.D. Cal. 2014) (decertifying statewide
class of 30,000 employees allegedly detained without pay until lock-
down procedures completed and rejecting FLSA collective action status
for group).
121 D. R. Horton, at 2286 fn. 24 (emphasis added).
122 Italian Colors, 133 S.Ct at 2310; see also AT&T Mobility, 131 S.
Ct. at 1748.
123 See generally Winston Churchill, A Roving Commission: My Ear-
ly Life (Charles Scribner’s Sons 1930).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
committed to this struggle, with its inventory of at least
37 D. R. Horton cases representing more than 10 percent
of the unfair labor practice cases pending at the Board
level. The resources committed to that struggle will not
be available to investigate, prosecute, and adjudicate
those unfair labor practices that Congress created this
agency to prevent.124
My colleagues in the majority embark on this course in
good faith, motivated by the goal of enforcing the Act as
they understand it. Their good intentions, however, can-
not change the fact that both D. R. Horton and today’s
decision are steering the agency on a collision course
with the Supreme Court. This might be understandable if
these cases involved the core employee-to-employee
concerted activity that lies at the heart of the Act. As
shown, that is not the case. What is at stake here, in-
stead, is merely an increase in the utilization of class and
collective action procedures established by other Federal
laws and administered by the Federal courts according to
decades of their own precedent—all areas where this
agency has no expertise. In these circumstances, the
likely outcome is a regrettable but completely predicta-
ble, understandable diminution of deference to the
Board’s orders, as various courts continue to reject D. R.
Horton’s reasoning and this agency’s attempt to interfere
with their management of their own cases. And, unfor-
tunately, in the interim, reviewing courts will be less and
less likely to defer to the Board’s construction of Section
7 in other contexts after dealing with D. R Horton’s un-
justified refusal to apply the FAA as the courts have di-
rected. Finally, and most importantly, this unfortunate
conflict will almost certainly end with the inevitable reaf-
firmation by the Supreme Court that the Act, too, must
yield to the federal policy of enforcing arbitration agree-
ments according to their terms.125 The prospect of victo-
ry is too slight, and the possible rewards are too limited
to justify D. R. Horton’s extraordinary cost in diverted
resources and lost judicial deference, in my view.
124 Given the vast amount of Board resources deployed and spent
upon this struggle over an area far flung from our expertise, this is the
Agency’s equivalent of ancient Athens’ doomed Sicilian Expedition
during the Peloponnesian War or its contemporary-but-apocryphal
analogue, the “land war in Asia.” See Thucydides, The History of the
Peloponnesian War (translated by Richard Crawley, Project Gutenberg
ed., 2009); “The Princess Bride” (1987), quoted at
http://www.imdb.com/title/tt0093779/quotes (last visited August 13, 2014).
125 As an administrative agency, we are duty-bound to faithfully ap-
ply extant Supreme Court precedent. The Supreme Court, at its discre-
tion, may change that precedent at any time, but until it does, extant
precedent is what it is. Here, the Board has chosen not to petition for
certiorari in the D. R. Horton case.
Conclusion
The Act provides employees with strong and important
protections when they discuss terms and conditions of
employment, decide together on a plan of action to seek
improvements in those conditions, and concertedly pre-
sent their grievances to their employer, an arbitrator, or a
court. The Board, alone, protects employees against job-
related reprisals when they act concertedly in these re-
spects, and thereby bring the strength of the group to
bear on the dispute. These are important rights, and I am
committed to their vigorous enforcement. While the Act
protects employees when they walk together into the
door of the courthouse or the arbitration hearing, under
the Federal Arbitration Act, what happens there is the
business of the court or the arbitrator and may legitimate-
ly be governed by individual arbitration agreements like
those at issue in this case. Today’s decision, like D. R.
Horton before it, fails to respect that principle. Indeed,
the fundamental premise of the majority opinion is that
any conflict between the Act and the FAA should be re-
solved in favor of the Act, which they term “sui generis,”
and that they are entitled to keep insisting on this view
until the Supreme Court itself directly orders them to
stop. As to the former rationale, the Supreme Court has
consistently resolved conflicts between the Act and other
Federal laws in favor of the other statute, even while it
has consistently resolved purported “conflicts” with the
FAA, based on generalized language, in favor of the
FAA.126 Taking this all in, no reason exists to believe
that the Act’s generalized provisions will prevail over the
FAA, especially given that statute’s vigorous enforce-
ment in the unbroken string of recent Supreme Court
opinions noted above.
As to the majority’s latter rationale of non-
acquiescence, it is certainly true that the Board is not
required to acquiesce in adverse decisions of lower
courts. Tellingly, however, both of the cases cited by the
majority for this proposition involved only issues of the
proper interpretation of the Act.127 The rationale for
nonacquiescence—the Board’s statutory role in the inter-
pretation of the Act and the fact that the only court au-
thorized to interpret the Act for the entire country is the
Supreme Court—has no application whatsoever to the
126 NLRB v. Bildisco & Bildisco, 465 U.S. 513 (1984) (bankruptcy
law—effectively overruled in part by 11 U.S.C. § 1113); Hoffman
Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2000) (immigration
law); Southern Steamship Co. v. NLRB, 316 U.S. at 31 (maritime anti-
mutiny statute).
127 Enloe Medical Center v. NLRB, 433 F.3d 834, 838 (D.C. Cir.
2005) (waiver of duty to bargain); Nielsen Lithographing Co. v. NLRB,
854 F.2d 1063, 1066–1067 (7th Cir. 1988) (duty to provide infor-
mation).

MURPHY OIL USA, INC. 831
proper interpretation of the Federal Arbitration Act, the
Federal Rules of Civil Procedure, the Fair Labor Stand-
ards Act, the Norris-LaGuardia Act, and the Rules Ena-
bling Act.128 Interpretation of those laws is the province
of the courts, and with the courts nearly universally re-
jecting the D. R. Horton theory, the Board should defer
to their rulings.
Therefore, I must dissent.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that
we violated Federal labor law and has ordered us to
post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalfAct together with other employees for
your benefit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain a mandatory arbitration agree-
ment that our employees reasonably would believe bars
or restricts their right to file charges with the National
Labor Relations Board.
WE WILL NOT maintain and/or enforce a mandatory ar-
bitration agreement that requires our employees, as a
condition of employment, to waive the right to maintain
class or collective actions in all forums, whether arbitral
or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Binding Arbitration Agreement
and Waiver of Jury Trial (Agreement and Waiver) in all
of its forms, or revise it in all of its forms to make clear
that the Agreement and Waiver does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, and that it
128 Even on its own terms the Board’s nonacquiescence policy has its
limits. Indeed, the court in Nielsen, a case on which the majority ex-
pressly relies, held that the Board there had gone beyond “refusing to
knuckle under to the first court of appeals (or the second, or even the
twelfth) to rule adversely to the Board” and instead was guilty of “deal-
ing with judicial precedent in a disingenuous, evasive, and in short
dishonest manner.” Yet my colleagues cite the case as support for their
treatment of the Supreme Court’s FAA jurisprudence all the same.
does not restrict your right to file charges with the Na-
tional Labor Relations Board.
WE WILL notify all applicants and current and former
employees who were required to sign the Agreement and
Waiver in any of its forms that the Agreement and Waiv-
er has been rescinded or revised and, if revised, provide
them a copy of the revised agreement.
WE WILL notify the court in which Sheila Hobson and
her three fellow plaintiffs filed their wage claim that we
have rescinded or revised the mandatory arbitration
agreements upon which we based our motion to dismiss
their claim and to compel individual arbitration, and WE
WILL inform the court that we no longer oppose the
plaintiffs’ claim on the basis of those agreements.
WE WILL reimburse Sheila Hobson and her three fel-
low plaintiffs for any reasonable attorneys’ fees and liti-
gation expenses that they may have incurred in opposing
our motion to dismiss their wage claim and compel indi-
vidual arbitration.

MURPHY OIL USA, INC.

The Board’s decision can be found at
www.nlrb.gov/case/10-CA–038804 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.

APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that
we violated Federal labor law and has ordered us to
post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain a mandatory arbitration agree-
ment that our employees reasonably would believe bars
or restricts their right to file charges with the National
Labor Relations Board.
WE WILL NOT maintain and/or enforce a mandatory ar-
bitration agreement that requires our employees, as a
condition of employment, to waive the right to maintain
class or collective actions in all forums, whether arbitral
or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the Binding Arbitration Agreement
and Waiver of Jury Trial (Agreement and Waiver) in all
of its forms, or revise it in all of its forms to make clear
that the Agreement and Waiver does not constitute a
waiver of your right to maintain employment-related
joint, class, or collective actions in all forums, and that it
does not restrict your right to file charges with the Na-
tional Labor Relations Board.
WE WILL notify all applicants and current and former
employees who were required to sign the Agreement and
Waiver in any of its forms that the Agreement and Waiv-
er has been rescinded or revised and, if revised, provide
them a copy of the revised agreement.
MURPHY OIL USA, INC.

The Board’s decision can be found at
www.nlrb.gov/case/10–CA–038804 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.