Sunday, June 25, 2017

Solicitor General to NLRB in Murphy Oil case: You're On Your Own, and We Will Ask SCOTUS to Rule Against Board

In an extremely unusual turn of events, the U.S. Solicitor General has reversed course and informed the Supreme Court that it now opposes the position of the NLRB in Murphy Oil, an important case regarding the validity of employment arbitration agreements.

In September 2016 -- before the November presidential election -- the Solicitor General filed a petition for review on behalf of the NLRB, advocating the NLRB's aggressive position that many employment arbitration agreements violate the NLRA.

However, as detailed in a SCOTUSBLOG post, in mid-June the Solicitor General filed a brief with the Supreme Court opposing the NLRB's position.  The Solicitor General then informed the NLRB it was "free" to represent itself before the Court -- because the Solicitor General would not.

The NLRB then issued an opaque statement , noting that the Solicitor General had "authorized" the NLRB to represent itself before the Court.

With the confirmation of Justice Gorsuch, it appears more likely than not that the NLRB's position will be rejected, when the case is decided next term.