January 18, 2022

In a notice issued today in Ralphs Grocery Company, the National Labor Relations Board (NLRB) is inviting parties and amici to submit briefs addressing whether the NLRB should adopt a new legal standard to determine whether confidentiality requirements in a mandatory arbitration agreement violate Section 8(a)(1) of the National Labor Relations Act and other legal issues related to mandatory arbitration agreements.

To aid in the consideration of these issues, the NLRB is inviting the submission of briefs to allow parties and interested amici the opportunity to address the following questions: (1) Should the NLRB abrogate the decision in Anderson Enterprises, where it overruled its earlier decision in the instant case?  Does the arbitration policy at issue in the instant case interfere with employees’ right to file NLRB charges or otherwise access the NLRB’s processes?; (2) Did the NLRB correctly hold in California Commerce Club that the Federal Arbitration Act privileges employers’ maintenance of confidentiality requirements in arbitration agreements that would otherwise violate Section 8(a)(1) by interfering with employees’ exercise of their rights guaranteed by Section 7?; and (3) If, contrary to California Commerce Club, the FAA does not prevent the NLRB from reviewing arbitration confidentiality requirements under the National Labor Relations Act, what standard should the Board apply to determine whether such requirements are lawful?

Briefs not exceeding 20 pages in length may be filed with the NLRB on or before March 21, 2022 and can be submitted on the NLRB’s E-Filing website here.

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