The biggest workplace challenge in the coming U.S. Supreme Court term will require a delicate dance to divide up argument time in three consolidated cases with six lawyers, including two stars of the high court bar, and a U.S. Justice Department that has changed positions.
The justices will hear arguments Oct. 2, the first case of the new term, on whether workplace arbitration agreements that ban class actions violate the National Labor Relations Act because they restrict employees' right to engage in "concerted activities."
Major companies and the Trump administration, contrary to the Obama administration's stance, contend the agreements are fully enforceable under the Federal Arbitration Act. The three cases, with huge stakes for employees and employers, will be among the most closely watched during the term.
While the Supreme Court has upheld class action bans in many consumer arbitration agreements, these cases reach into the employer-employee relationship. The National Labor Relations Act protects the rights of employees and employers to encourage collective bargaining and to curtail certain harmful private-sector labor and management practices. The act applies to most private-sector employers, but not to federal, state or local governments.
The consolidated cases before the justices are: National Labor Relations Board v. Murphy Oil USA; Epic Systems v. Lewis; and Ernst & Young v. Morris.
Two motions for divided argument time have been filed in the Supreme Court—one by the National Labor Relations Board general counsel, Richard Griffin Jr., and the other by acting Solicitor General Jeffrey Wall.
Griffin, whose office is independent of the board, is asking the court for 20 minutes of argument time with the remaining 10 minutes for Daniel Ortiz of the University of Virginia School of Law's Supreme Court Litigation Clinic. Ortiz represents employee Jacob Lewis in Epic Systems.
Griffin told the justices that lawyers for Lewis and Sheila Hobson, who was the original charging party in the Murphy Oil case before the labor board, had agreed that he and Ortiz should argue. But Max Folkenflik of New York's Folkenflik & McGerity, who represents Ernst & Young employees Stephen Morris and Kelly McDaniel, agreed only to the division of time and Griffin's participation in the argument on behalf of the labor board. Folkenflik did not respond to an inquiry on Tuesday.
When the NLRB case was originally filed in September 2016, the government supported the board's position that class and collective bans violated federal labor law. The change in the White House, however, resulted in an about-face. Wall, the acting solicitor general as Noel Francisco awaits a confirmation vote, told the justices in June that his office had reconsidered the issue with the arrival of the new administration.
"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," Wall wrote.
Griffin, whose term expires in November, will argue the case shortly before the labor board itself changes from a Democratic to a Republican majority. Two NLRB nominees are pending in the U.S. Senate—William Emanuel of Littler Mendelson and Marvin Kaplan, a federal agency lawyer. Bloomberg BNA reported Monday that Peter Robb of Downs Rachlin Martin in Vermont is a leading contender to replace Griffin for general counsel, a Senate-confirmed post.
"The board and the private parties, in advocating for their respective interests, differ in the emphasis placed on various arguments supporting their common position that the agreements are unlawful under well-established federal labor law and the FAA does not mandate their enforcement," Griffin wrote in urging divided time for himself and Ortiz.
On the other side, the government's top lawyer, Wall, has requested 10 minutes of argument time as a friend-of-the-court supporting the companies in the case.
Hogan Lovells partner Neal Katyal represents Murphy Oil and Epic Systems. Williams & Connolly's Kannon Shanmugam is counsel to Ernst & Young. Wall said in his request that they have agreed to cede 10 minutes of their 30 minutes to the government.
Neither Katyal nor Shanmugam immediately responded to requests for comment on whether they had agreed yet on who would argue for their clients or whether to seek a division of their 20 minutes.
If the two veteran high court litigators fail to agree, they can always resort to a coin toss—not unheard of within the court's marble walls.
Last year, two other high court veterans—Sidley Austin's Carter Phillips and Seth Waxman of Wilmer Cutler Pickering Hale and Dorr—initially sought to divide their 30 minutes so each could argue in key patent cases. But the justices, as they have with prior requests by private parties, denied their motion.
And so a coin was tossed. Phillips won.
Marcia Coyle, based in Washington, covers the U.S. Supreme Court. Contact her at email@example.com. On Twitter: @MarciaCoyle.