June 19, 2017
Private: In Virtually Unprecedented Move, Trump Solicitor General Switches Sides in Murphy Oil Case
*This piece originally appeared on the EPI blog.
by Celine McNicholas, Labor Counsel, Economic Policy Institute
Today, the Acting Solicitor General switched the government’s position in National Labor Relations Board v. Murphy Oil USA, Inc, from arguing in favor of working people to arguing in favor of big business. The move is deeply disappointing, and represents a stark departure from standard practice. It is the clearest indication yet of where the Trump administration stands: with corporate interests and against working people.
The Murphy Oil case is significant for workers. It will determine whether mandatory arbitration agreements with individual workers that prevent them from pursuing work-related claims collectively are prohibited by the National Labor Relations Act (NLRA). These agreements have become increasingly common.
The NLRA guarantees workers the right to join together to improve their terms and conditions of employment and prohibits employers from interfering with or restraining the exercise of these rights. In Murphy Oil, the National Labor Relations Board is arguing that agreements that force workers to waive their right to pursue work-related claims on a class or collective basis interfere with workers’ rights under the NLRA and are prohibited. The Solicitor General argued this position just last October, and there has been no change in the law since then. As a matter of fact, just last month the United States Court of Appeals for the Sixth Circuit held that these mandatory arbitration agreements and class action waivers are prohibited by the NLRA. The only thing that has changed is the administration.
It is worth noting how unprecedented this move is. The most recent example of the Solicitor General changing positions is a Reagan administration-era case, Bob Jones University v. United States. In that case, the government changed its position to advocate in favor of an institution’s right to adopt racially discriminatory policies while enjoying tax exempt status. It was a shameful switch. And, the Solicitor General lost. Today’s decision is also shameful. The Acting Solicitor General is arguing against workers’ rights to join together to advocate for better wages and working conditions. Like the Bob Jones University about-face, this switch, puts the Acting Solicitor General and the Trump administration on the wrong side of history and, hopefully, the wrong side of the Supreme Court in this important case.