Last Friday, the U.S. Department of Justice (DOJ), in a rare move, changed its position in a class waiver case pending before the U.S. Supreme Court. On Jan. 13, 2017, the Court granted certiorari in three consolidated cases to resolve whether arbitration agreements with class and collective waivers are enforceable under the Federal Arbitration Act (FAA) despite the National Labor Relations Board’s (NLRB’s) current interpretation of Sections 7 and 8 of the National Labor Relations Act (NLRA). We have extensively covered the lengthy run-up to the cases involving Epic Systems Corp., Ernst & Young and Murphy Oil USA Inc., including the grant of certiorari, in a Jan. 17, 2017, blog here and a subsequent Sixth Circuit opinion in a June 1, 2017, blog.
The consolidated cases include one involving the NLRB, NLRB v. Murphy Oil USA, Inc., No. 16-307. Initially the deputy solicitor general, Edwin S. Kneedler, was counsel of record on the certiorari petition in Murphy Oil filed on Sept. 9, 2016. But on June 16, that position changed in the DOJ’s amicus, or “friend of the court,” brief with Jeffrey B. Wall, acting solicitor general, as counsel of record. The brief described the basis for the office’s “reconsideration” after the new administration took office:
Although the Board’s interpretation of ambiguous NLRA language is ordinarily entitled to judicial deference, courts do not defer to the Board’s conclusion as to the interplay between the NLRA and other federal statutes. 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. Continue Reading