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The Bargaining Table

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In Ralphs Grocery Company, 375 NLRB No. 25 (Aug. 10, 2026), the National Labor Relations Board (NLRB or the Board) revisited a long-running dispute concerning a mandatory employment arbitration agreement in light of the U.S. Supreme Court’s decision in Epic Systems Corp. v. Lewis, in which the Court held that employers can implement arbitration provisions requiring employees to waive the right to bring class or collective actions. The Board’s decision provides important guidance for employers using arbitration agreements, particularly with respect to confidentiality provisions and language preserving employees’ rights to file charges with the NLRB.

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Ralphs Grocery Co. maintained a mandatory mediation and binding arbitration policy requiring employees to arbitrate employment-related disputes. The policy also contained a provision requiring the parties to maintain the confidentiality of the existence, content and outcome of any arbitration proceeding, and a savings clause stating that employees retained the right to file charges with the NLRB and the Equal Employment Opportunity Commission.

In an earlier 2016 decision, Ralphs Grocery Company I, the Board found similar policies unlawful because they prohibited class and collective actions, interfered with access to the NLRB, and imposed overbroad confidentiality requirements. After Epic Systems upheld class-action waivers in arbitration agreements, the Ninth Circuit remanded the remaining issues to the Board.

The Holding – Key Employer Wins and the Board’s Approval of a Savings Clause

The Ralphs Grocery Company II Board reached a split outcome, with some key wins for employers. First, relying on its prior decision in California Commerce Club, the Board held that employers may require employees to keep the content of arbitration proceedings and the outcomes, awards, or decisions confidential. The Board reasoned that these provisions concern the rules governing the arbitration process itself and are therefore protected by the Federal Arbitration Act (FAA). As a result, such restrictions generally do not violate Section 8(a)(1) of the National Labor Relations Act (NLRA).

The Board, however, drew a distinction between confidentiality regarding what occurs during arbitration and a requirement that employees not disclose the fact that an arbitration proceeding exists or occurred. The Board determined the latter prohibition is not protected by the FAA because it extends beyond the arbitration process itself and functions as a perpetual gag order. Because employees have a right under Section 7 of the NLRA to discuss workplace issues and employment-related disputes with one another, the Board found that maintaining a rule prohibiting disclosure of the existence of arbitration violates Section 8(a)(1).

The Board also rejected the argument that the arbitration agreement unlawfully interfered with employees’ access to the NLRB. The agreement contained a clear provision stating, “All Employees retain the right under the … NLRA to file charges” with the Board. Applying the Board’s current Stericycle standard – i.e., a work rule is invalid if it could be reasonably interpreted to “chill” employees’ exercise of their Section 7 rights – the majority concluded that a reasonable employee would understand from this language that he or she remains free to file charges with the NLRB. Accordingly, the Board found no violation based on alleged interference with access to the agency.

Ralphs Grocery Company provides welcome clarity for employers seeking to maintain enforceable arbitration programs. The NLRB confirmed that confidentiality provisions covering the content and outcome of arbitration generally remain lawful under the FAA. At the same time, employers should avoid provisions prohibiting employees from disclosing the existence of an arbitration proceeding, as the Board views such restrictions as infringing on employees’ NLRA rights. The decision also underscores the value of including an unequivocal and conspicuous savings clause that expressly preserves employees’ right to file charges with the NLRB. Lastly, since the Board views Stericycle as applicable to all workplace rules and policies, employers should continue evaluating handbook and arbitration provisions from the perspective of whether employees could reasonably view them as restricting their Section 7 rights.

Please feel free to contact a member of the BakerHostetler’s Labor Relations team if you have any questions.

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