On March 21, CDW filed an amicus brief in Ralph’s Grocery, a case before the NLRB in which the Board is considering adopting a new standard to determine if confidentiality requirements in mandatory arbitration agreements violate workers’ right to collectively bargain under the National Labor Relations Act (NLRA). CDW is calling on the Board to adhere to its 2020 Anderson Enterprises decision that “[held] that an arbitration agreement explicitly and prominently assuring employees of their right to file charges with the Board does not interfere with such employee rights under the NLRA.”

In our brief CDW pointed to past Supreme Court precedent (Epic Systems) clearly stating that the NLRB does not have authority to challenge enforcement of arbitration agreements between employers and employees under the Federal Arbitration Act (FAA). “Any action by the Board to overrule Anderson and impose liability on the employer here would violate the FAA and lead to another confrontation with the Supreme Court.”

Furthermore, “the Board lacks jurisdiction to penalize confidentiality provisions in arbitration agreements covered by the FAA, which do not in any event interfere with employees’ exercise of Section 7 rights.” Such confidentiality provisions govern the procedures used to adjudicate legal claims but do not force employees into confidentiality over the facts underlying a claim. By attempting to regulate adjudicatory procedures and proceedings, the Board “moves outside of its expertise and is entitled to no deference.”