Employees appeared to face an uphill fight in the U.S. Supreme Court on Monday as the justices heard arguments in a closely watched dispute over whether class action waivers in workplace arbitration agreements violate federal labor laws.

The three cases, consolidated for an hour of argument on the new term's opening day, offered the justices a clash between the commands of two old, federal laws—the National Labor Relations Act, which protects employees' rights to engage in “concerted” activities, and the Federal Arbitration Act, which mandates enforcement of valid arbitration agreements.

The high court's arbitration decisions offer a “well trod path” for resolving the issue, argued Kirkland & Ellis partner Paul Clement, counsel to the three employers. Any tie, he added, “goes to the FAA.”

Not so, countered National Labor Relations Board general counsel Richard Griffin. The board's position that such class waivers violate labor laws relies on “long-standing precedent,” he argued. Workers can agree to arbitrate individually as long as there is some forum for collective actions.

Here are some key moments and takeaways from the arguments in Epic Systems v. Lewis; Ernst & Young v. Morris; and NLRB v. Murphy Oil. Disputes involving dozens of companies are on holding pending the resolution of the cases.

'All the Essential Features of Yellow-Dog Contracts'

The high court's liberal wing pounced early and often on arguments by Clement and Principal Deputy Solicitor General Jeffrey Wall.

“This kind of contract, there is no true bargaining,” Justice Ruth Bader Ginsburg told Clement. “This has all the essential features of yellow-dog contracts. That is, that there is no true liberty to contract on the part of the employee, and that's what Norris-LaGuardia 
wanted to exclude.” (Yellow-dog contracts were agreements in which a prospective employee promises as a condition of employments not to join a union. They were outlawed by the 1932 Norris-LaGuardia Act.)

Ginsburg, addressing Wall, noted that in one of the three cases, the individual claim was for $1,800. “This is truly a situation where there is strength in numbers. That was the whole idea of the NLRA, to protect the worker,” she said.

Justice Stephen Breyer was not any happier with Clement's position, telling the former George W. Bush solicitor general, “I haven't seen a way that you can, in fact, win the case, which you certainly want to do, without undermining and changing radically what has gone back to the New Deal, that is, the interpretation of Norris-LaGuardia and the NLRA.”

And Justices Sonia Sotomayor and Elena Kagan also seemed skeptical of the employer-side arguments.

Justice Department's Litigation Switch Goes Unaddressed

In June, the Justice Department reversed its position in the labor cases, telling the Supreme Court that workplace arbitration agreements prohibiting class actions do not violate federal labor law. Wall, the acting solicitor general at the time, told the court that after the change in administrations, the Justice Department had reconsidered. The new position put the department at odds with the NLRB.

About-faces by the Justice Department during the Obama administration drew reactions from some justices during oral arguments in several cases. But no one mentioned the Trump administration switch on Monday.