Solicitor General Reverses Position in Murphy Oil

This post is part of OnLabor’s continuing analysis of National Labor Relations Board v. Murphy Oil USA.

Despite previously submitting a petition for writ of certiorari for the National Labor Relations Board, the Solicitor General’s office has reversed its position in the consolidated cases of Murphy Oil USA, Epic Systems, and Ernst & Young and urges that the Supreme Court find that class action waivers are enforceable.  In an amicus brief submitted to the Court on Friday, the Solicitor General’s office explained that it has rethought its support for the Board after the election of President Trump.  The Solicitor General’s office writes:

“We do not believe that the Board in its prior unfair-labor-practice proceedings, or the government’s certiorari petition in Murphy Oil, gave adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA.  More specifically, the Board’s view that the phrase “other concerted activities” in 29 U.S.C. 157 encompasses participation in collective or class litigation may reflect a permissible interpretation of that language, such that an employer might commit an unfair labor practice by discharging employees who initiated or joined such suits in accordance with other provisions of law.  It does not follow, however, that Section 157 expands the range of circumstances in which such litigation can go forward, by allowing employees who validly waived their collective-litigation rights under the FLSA to escape the consequences of that choice.  The Board’s approach fails to respect the FAA’s directive that arbitration agreements should be enforced unless they run afoul of arbitration-neutral rules of contract validity.”

This reading of the two statutes is a sharp departure from the government’s position in its petition for writ of certiorari where the Solicitor General argued:

“the ability to engage in concerted activities under the NLRA is not a mere procedural means for vindicating some other statutory right. It is, as the Board has concluded, ‘the core substantive right protected by the NLRA and is the foundation on which the Act and Federal labor policy rest….This Court has never held that arbitration agreements may waive such substantive rights or be given effect in contravention of the statutes that create and protect those rights.”

Again, the full amicus brief is available here.