The about-face came in National Labor Relations Board v. Murphy Oil USA, in that the justices have decided to decide whether contracts to forgo class actions or collective proceedings and rather resolve employer-worker disputes through individual arbitration are enforceable underneath the Federal Arbitration Act. In the petition for review with respect to the NLRB, filed in September 2016, the Solicitor General’s office had contended that such contracts aren’t, since the National Labor Relations Act protects employees’ ability to take part in joint actions concerning the terms or conditions of the employment. On The month of january 13, 2017, just 7 days prior to the inauguration of President Jesse Trump, the final Court granted the NLRB’s petition, together with two others filed by employers (Ernst & Youthful LLP v. Morris and Epic Systems v. Lewis), and consolidated the 3 cases for just one hour of dental argument.
Suggested Citation: Amy Howe, Murphy Oil’s law: Solicitor General’s office reverses course in arbitration cases, supports employers, SCOTUSblog (Jun. 19, 2017, 7:12 AM), http://world wide web.scotusblog.com/2017/06/murphy-oils-law-solicitor-generals-office-reverses-course-arbitration-cases-supports-employers/
Underneath the briefing schedule purchased within the situation, the employers in most three cases filed their briefs on June 9, with briefs in the employees and also the NLRB to follow along with on August 9. But on Friday (the deadline underneath the court’s rules to do this), the U . s . States filed a “friend from the court” brief supporting the employers. The petition for review have been signed by seven lawyers in the NLRB, including its general counsel. Individuals NLRB lawyers were conspicuously absent from Friday’s brief, that was signed only by lawyers in the Solicitor General’s office. Acting Solicitor General Jeffrey Wall acknowledged that his office had formerly filed a petition with respect to the NLRB, “defending the Board’s view that contracts like that at issue listed here are unenforceable.” But, Wall ongoing, “since the modification in administration, work reconsidered the problem and it has arrived at the alternative conclusion.” Particularly, Wall described, the NLRB hadn’t given “adequate weight towards the congressional policy favoring enforcement of arbitration contracts that’s reflected in the” Federal Arbitration Act.
It’s rare for that Office from the Solicitor General to alter its position inside a situation prior to the Top Court after a general change in administrations, even if your party in charge of the White-colored House changes. But that’s precisely what happened a week ago, once the Trump administration considered in with an important arbitration situation: Work advised the justices to affirm exactly the same decision that, with respect to the nation’s Labor Relations Board, it’d formerly requested these to review and overturn.
In an announcement printed around the NLRB’s website, the NLRB established that Wall had approved it to represent itself within the Top Court proceedings within this situation, and absolutely nothing within the brief from the U . s . States shows that the NLRB has altered its position. Which means that the NLRB will probably file its very own brief, reiterating its original position within the situation, at the begining of August. And when the U . s . States seeks and receives permission to argue within the situation, because it virtually always does in the event that files “friend from the court” briefs, an attorney for that U . s . States would argue against an attorney for any U.S. agency – a phenomenon possibly much more uncommon than a general change in position following a general change in administration.