Labor & Employment Law Daily Wrap Up, LABOR—ARBITRATION—NLRB: Arbitration policy did not unlawfully interfere with employees’ right of access to Board, (Aug 11, 2026)

By Todd Harrison, J.D.

Given the agreement included a prominent stand-alone paragraph addressing employees’ ability to pursue administrative remedies, a reasonable employee could not interpret the policy to restrict their right of access to the Board.

In a case on remand from the Ninth Circuit, the NLRB determined that an arbitration policy instituted by Ralphs Grocery did not unlawfully interfere with employees’ statutory right of access to the Board and its processes. The Board found that a savings provision in the agreement was framed in a way that objectively reasonable employees would understand that the inclusion of such language in a legal document made it clear they had the right to file charges with the Board. As to the legality of a confidentiality provision, the Board held that it violated Section 8(a)(1), but only insofar as it required employees to maintain the existence of any arbitration proceeding in the strictest confidence. Member Prouty dissented in part (Ralphs Grocery Co., 375 N.L.R.B. No. 25 (Aug. 10, 2026)).

In 2009, a security guard for Ralphs Grocery filed a class action and PAGA lawsuit in California state court against the employer, alleging it failed to pay wages for missed lunch and rest breaks. At all relevant times, the parties were subject to a mandatory mediation and binding arbitration policy.

Savings clause. Paragraph six of the agreement contained a savings clause stating, “Notwithstanding any other provision of this Arbitration Policy, all Employees retain the right under the National Labor Relations Act (“NLRA”) to file charges with the National Labor Relations Board (“NLRB”), and to file charges with the United States Equal Employment Opportunity Commission (“EEOC”) under federal equal employment opportunity laws within the EEOC’s administrative jurisdiction.”

Confidentiality provision. In addition, a separate paragraph contained a confidentiality provision stating, “Except and only to the extent it may be required by applicable law, the parties and the Qualified Arbitrator shall maintain the existence, content, and outcome of any arbitration proceeding held pursuant to this Arbitration Policy in the strictest confidence and shall not disclose the same without the prior written consent of all the parties.”

Ralphs Grocery I. Pursuant to the arbitration policy, the employer filed a petition to compel arbitration and dismiss the state court proceeding. The employee filed an unfair labor practice charge with the Board in 2012, alleging the arbitration policy was unlawful under the NLRA. The Board agreed, finding that the policy violated Section 8(a)(1) of the Act by maintaining and enforcing a mandatory individual arbitration policy that: (1) required employees to waive their right to pursue class or collective actions; (2) interfered with employees’ ability to file unfair labor practice charges with the Board; and (3) required employees to maintain the confidentiality of the existence, content, and outcome of any arbitration proceedings.

Ninth Circuit. After the Board issued its decision, the employer filed a petition for review with the Ninth Circuit. While the case was pending, the Supreme Court decided Epic Systems Corp. v. Lewis, 584 U.S. 497 (2017). Rejecting the view of the Board, as set forth in NLRB v. Murphy Oil and reflected in Ralphs Grocery I, the Court held that employer-imposed arbitration policies prohibiting class or collective actions in any forum were lawful.

As a result of the Court’s holding, the Ninth Circuit vacated the portion of the Board’s order governed by Epic Systems and remanded the remainder of the case to the Board. Here, the Board was confronted by two issues: (1) whether the employer unlawfully maintained the arbitration policy’s confidentiality provision; and (2) whether the arbitration policy unlawfully restricted access to the Board.

Confidentiality provision. First, the Board addressed the confidentiality provision. In California Commerce Club, 369 NLRB No. 106 (2020), the Board held that “provisions in an arbitration agreement requiring that arbitration be conducted on a confidential basis, including provisions precluding the disclosure of evidence, award, and/or decision beyond the arbitration proceeding, do not violate the Act and must be enforced according to their terms pursuant to the FAA.”

Here, the Board found that the portions of the confidentiality provision restricting the disclosure and outcome of the arbitration were limited to the rules under which the arbitration was to be conducted and were therefore lawful under California Commerce Club.

The Board reached a different result, however, with respect to the portion of the confidentiality provision prohibiting the disclosure of the existence of the arbitration. “Prohibiting the disclosure of the fact that the arbitration ever happened long after it ended is a perpetual gag order against disclosing, outside the arbitral forum, that the arbitration ever occurred. It has nothing to do with the rules under which the arbitration will be conducted,” said the Board, finding that this portion of the confidentiality provision was not shielded by the FAA.

As to whether this portion of the confidentiality provision violated the Act, the Board concluded that it did. The agreement encompassed disputes arising under the Act. “Moreover, the events giving rise to all claims covered by the Arbitration Policy would concern wages, hours, or other terms or conditions of employment; employees’ conversations with one another concerning those events do implicate the Act; and nothing in the Agreement’s settlement-confidentiality provision limits its scope,” explained the Board.

Board access. Next, the Board considered whether the arbitration policy unlawfully interfered with employees’ access to Board processes. The Board concluded that it did not.

In Stericycle, Inc., 372 NLRB No. 113 (2023), the Board adopted a new standard for determining whether facially neutral workplace rules and policies violate the Act. Under Stericycle, the Board analyzed the workplace policies under the “reasonably could” standard. In other words, an agreement is presumptively lawful if employees could not reasonably interpret it to interfere with their right to file charges with the Board.

Here, the Board found that the agreement met the standard established in Stericycle. The policy consisted of a three-page document and included a prominent, stand-alone paragraph addressing employees’ ability to pursue administrative remedies. Under Stericycle, such a provision is presumptively unlawful only if “an employee could reasonably interpret” it to restrict or prohibit Section 7 activity. In this instance, an employee could not interpret the arbitration policy to restrict their right to file charges with the Board.

“Where an arbitration agreement contains prominent language in a savings clause expressly stating that employees retain their ability to file charges with the Board, that specific language is deemed to resolve any ambiguity created by the more generalized language in the agreement,” concluded the Board, and no reasonable employee could understand the policy as interfering with their access to the Board and its procedures.

Partial dissent. In a partial dissent, Member Prouty stated that he would not find the portion of the confidentiality provision requiring employees to keep the “content... of any arbitration proceedings” confidential as lawful, or that the policy contained a sufficiently prominent savings clause rendering the policy lawful, even though employees could otherwise reasonably interpret it to restrict their access to the Board and its processes.

The slip opinion is 375 NLRB No. 25.

Attorneys: Timothy Ryan (The Offices of Timothy F. Ryan) for Ralphs Grocery Co. Melissa Grant (Capstone Law) for Terri Brown.

Companies: Ralphs Grocery Co.

MainStory: TopStory Labor Arbitration AgencyNews GCNNews