The NLRA does not prohibit employers from including class action waivers in arbitration agreements with their employees. The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum. The NLRA does not guarantee a right to class action litigation. Under the FAA, courts must enforce not only the parties’ arbitration agreement but also the rules under which they agreed to arbitrate. The FAA’s savings clause does not allow any exception for class action waivers since one-on-one arbitration is a fundamental attribute of arbitration; any rule targeting class action waivers, in particular, is therefore not one applicable to contracts generally, but one that disproportionately disadvantages arbitration agreements. The NLRA does not contain any clear and manifest command to create an exception to the FAA’s general rules but rather guarantees workers’ rights to organize in unions and bargain for employment contracts, not any right to litigate together.
United States Supreme Court (Gorsuch, J.; Thomas, J., concurring; Ginsburg, Breyer, Sotomayor, & Kagan, JJ., dissenting); May 21, 2018; 2018 U.S. LEXIS 3086