It provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157 (emphasis added). The term "concerted activities" is not specifically identified in the NLRA.

of Teamsters, 356 F.Supp. at 639. Likewise, the NLRA provides that "Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing ... " 29 U.S.C. § 157. The Supreme Court has stated that "The central purpose of the [NLRA] was to protect and facilitate employees' opportunity to organize unions to represent them in collective-bargaining negotiations."

Every other provision of the statute serves to enforce the rights Section 7 protects. Compare 29 U.S.C. § 157 with id. §§ 151–169.

. to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title . . . .”) (emphasis added), and 29 U.S.C. § 157 (“Employees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”) (emphasis added), with 29 U.S.C. § 102 (“[Employees] shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”) (emphasis added). The NLRB’s conclusion that class and collective action waivers violate Norris-LaGuardia is therefore strongly persuasive.

Vaca v. Sipes, 386 U.S. at 173–74. The Missouri Supreme Court reinstated the verdict, holding (i) that the jurisdiction of the Missouri courts was not preempted because the union’s conduct was not an unfair labor practice, 397 S.W.2d at 664–65 (citing 29 U.S.C. §§ 157–158), and (ii) that there was sufficient evidence supporting the jury’s determination that the plaintiff had a meritorious claim but the union had refused to take the grievance to arbitration, id. at 665.

The McNeil court thus rejected Defendants’ “sham” argument because “just as employees have a right to bargain collectively through a labor organization, they also have a corresponding right not to do so.” Powell/McNeil, 764 F. Supp. at 1354, 1358 (citing 29 U.S.C. § 157). Nor is there any merit to Defendants’ claim that renouncing the NFLPA’s union status was a meaningless change equivalent to “flicking a switch.”

1 at ¶¶ 24-25] Section 7 of the NLRA does not provide former employees with the right to engage in concerted activity. See 29 U.S.C. § 157. Indeed, former employees are wholly Case 2:17-cv-00053-TAV-MCLC Document 84 Filed 10/02/17 Page 4 of 6 PageID #: 1655 5 excluded from the definition of employee except to the extent their “work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice…” 29 U.S.C. § 152(3).

Case 5:17-cv-00784-MHH Document 36 Filed 09/22/17 Page 4 of 13 5 465 U.S. 822, 835 (1984); see also Brady v. Nat’l Football League, 644 F.3d 661, 671 (8th Cir. 2011). Section 7 of the NLRA explains that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .” 29 U.S.C. 157 (emphasis added). As the Sixth, Seventh, and Ninth, Circuits have concluded, the right to engage in “concerted activities” is a substantive right that “include[s] resort to representative, joint, collective, or class legal remedies.”

Garmon, 359 U.S. at 244. "When an activity is arguably subject to § 78 or § 89 of the [NLRA], the States as well as the federal 8 Section 7 of the National Labor Relations Act ("NLRA") guarantees employees "the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection ..." 29 U.S.C. § 157. 9 Section 8 makes it an unfair labor practice for an employer to "interfere with, retrain, or coerce employees in the exercise of the rights guaranteed in" Section 7 (Footnote continued on next page) - 10 - DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:16-cv-03109-PSG-JC Document 31-1 Filed 05/30/17 Page 18 of 34 Page ID #:769 courts must defer to the exclusive competence of the [NLRB] if the danger of state interference with national policy is to be averted.

Out of an abundance of caution, AutoNation also includes herein a reservation of its right to move to compel arbitration of Plaintiff’s claims on an individual basis if the law on the validity of class-action waivers changes. AutoNation acknowledges that the Ninth Circuit has found employment agreements with class-action waivers like the one here unconscionable under the National Labor Relations Act, 29 U.S.C. §§ 157-158. See Morris v. Ernst & Young, LLP, 834 F.3d 975, 984 (9th Cir. 2016), cert. granted, 137 S. Ct. 809 (2017).