When the current edition of the book was printed, the Supreme Court had just granted cert. in Epic Systems, in which it would review the NLRB’s determination in D.R. Horton that mandatory arbitration policies that banned class arbitration violate employees’ Section 7 rights. Below is a paragraph for the end of Chapter 3, Section 1, Note 9 (pp.163-164) that summarizes the Court’s holding in Epic Systems. The Epic Systems link contains the entire note, with the new paragraph noted.
Update:
In Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 200 L.Ed.2d 889 (2018), the Supreme Court stated that the NLRA “does not express approval or disapproval of arbitration. It does not mention class or collective action procedures. It does not even hint at a wish to displace the Arbitration Act—let alone accomplish that much clearly and manifestly, as our precedents demand.” Puzzlingly, Justice Gorsuch commented on Section 7’s phrase ‘other concerted activities for the purpose of . . . other mutual aid or protection’ as follows: . . . “the term appears at the end of a detailed list of activities speaking of ‘self-organization,’ ‘form[ing], join[ing], or assist [ing] labor organizations,’ and ‘bargain[ing] collectively.’ And where, as here, a more general term follows more specific terms in a list, the general term is usually understood to ‘embrace only objects similar in nature to those objects enumerated by the preceding specific words.’” Narrowly read, Epic Systems establishes that enforcement of class arbitration waivers does not violate the NLRA. But Justice Gorsuch’s expansive dicta reads the phrase “concerted activities” in a way that is much more closely linked to the activities of labor organizations than current Supreme Court authority holds. See Labor Board v. Washington Aluminum Co., 370 U.S. 9 (1962). It is too early to tell whether this language forecasts a broad change in the Court’s view of Section 7’s scope.