NLRB Invites Briefs on Mandatory Arbitration Clauses
In a notice issued today in Ralphs Grocery Company 371 NLRB No. 50 (2021) the National Labor Relations Board invites parties and amici to submit briefs addressing whether the Board 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 Board now invites the filing of briefs in order to afford the parties and interested amici the opportunity to address the following questions.
1. Should the Board 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 Board charges or otherwise access the Board’s processes?
2. Did the Board 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?
3. If, contrary to California Commerce Club, the FAA does not prevent the Board from reviewing arbitration confidentiality requirements under the National Labor Relations Act, what standard should the Board apply to determine whether such requirements are lawful?
Chairman McFerran and Members Wilcox and Prouty joined in issuing the notice and invitation for the Board. Members Kaplan and Ring dissented.
Briefs not exceeding 20 pages in length may be filed with the Board in Washington, DC on or before March 21, 2022. The parties (but not amici) may file responsive briefs on or before April 4, 2022, which shall not exceed 30 pages in length. No other responsive briefs will be accepted. Motions for extensions of time in which to file briefs will not be granted absent compelling circumstances. The parties and amici shall file briefs electronically by E-Filing on nlrb.gov. If assistance is needed in E-filing, please contact the Office of Executive Secretary at 202-273-1940.
Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees, employers, and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.