In many private arbitration agreements entered into in the non-union context, employers and employees agree that the proceedings shall remain confidential. On June 19, 2020, the Board addressed whether a confidentiality provision that arguably restricted an employee participating in the arbitration process from disclosing terms and conditions of employment violates the NLRA.

The Board held, in California Commerce Club, Inc., 369 N.L.R.B. No. 106 (2020), that a narrowly-tailored confidentiality provision in an arbitration agreement prohibiting employees from disclosing evidence obtained during the arbitration or the award/decision itself did not violate the NLRA. Significantly, the Board also held that such agreements should not be evaluated under the Boeing standard, which applies to employer policies and work rules, but instead must be considered under the Federal Arbitration Act (“FAA”) and should be enforced pursuant to the strong body of federal precedent enforcing arbitration agreements.

Factual Background and the ALJ Decision Below

Since early 2015 the employer entered into individual arbitration agreements (the “Arbitration Agreement”) with each of its non-union employees. In particular, the Arbitration Agreement provided that arbitration would be the exclusive dispute resolution process for employment-related claims and that all such “arbitration[s] shall be conducted on a confidential basis and there shall be no disclosure of evidence or award/decision beyond the arbitration proceeding.”

The General Counsel alleged, and the Administrative Law Judge agreed, that this confidentiality provision in the Arbitration Agreement was unlawful because it could be applied to restrict employees in the exercise of their Section 7 right to discuss their terms and conditions of employment. The ALJ likened the confidentiality provision to other workplace confidentiality rules that the Board has found unlawful in other cases.

The Board adopted the ALJ decision and the employer filed a petition for review with the D.C. Circuit. While the petition was pending, however, the Board issued its Boeing Co. decision, which retroactively applied a new standard for all pending work-rule interpretation cases. Based on this intervening precedent, the D.C. Circuit remanded the case back to the Board to consider the legality of the confidentiality provision in light of Boeing.

The Board Reverses its Decision and Declines to Consider Boeing

On remand, the Board reversed its prior decision, holding that the employer did not violate the NLRA by maintaining the confidentiality provision in the Arbitration Agreement. The Board balanced the scope of the disputed confidentiality provision, the parties’ interests implicated by the provision, and the policies of the NLRA. Taking all into account, the Board found that the confidentiality provision was valid because, when reasonably read, it did not prohibit employees from discussing their claims against the employer, the legal issues central to the arbitration, or the events, facts, and circumstances that gave rise to the claim, as long as the employee possessed that information independently from the arbitration proceedings.

However, the Board also acknowledged that the confidentiality provision would restrict employees’ ability to discuss terms and conditions of employment to some extent—for instance, the provision would prohibit an employee from telling coworkers that he or she prevailed in arbitration. While the Board would typically need to balance the impact of a confidentiality work rule on Section 7 rights against the employer’s legitimate interests in preserving the rule under Boeing, the Board here determined that the Arbitration Agreement was not an employer-promulgated work rule subject to the Boeing analysis. Rather, it was part of a larger arbitration agreement whose enforceability is governed by the FAA.

Consistent with Supreme Court precedent interpreting and applying the FAA, the Board held that it was required to enforce the confidentiality provision in the Arbitration Agreement in light of the strong federal policy favoring arbitration, unless there was some congressional mandate to the contrary. In interpreting the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), the Board held that there is no such congressional mandate in the NLRA that precludes enforcement of the Arbitration Agreement’s confidentiality provision:

“the confidentiality provision at issue here is part and parcel of the rules under which the parties have agreed to conduct arbitration. It would be contrary to Epic Systems and to decades of Supreme Court precedent interpreting the FAA to find a contrary congressional command on these facts. To the contrary, the FAA gives parties the discretion to design their own dispute-resolution procedures, tailored to the type of dispute, including that arbitral proceedings be kept confidential if the parties so choose.”


First, the Board chose not to apply the Boeing balancing test when considering the legality of the Arbitration Agreement, distinguishing arbitration agreements from employer-promulgated work rules. Even though the case was remanded back to the Board in light of Boeing, the Board chose to ignore the Boeing test. The Board’s method of analysis significantly affected its ultimate finding because the Board relied heavily on FAA principles and the strong federal policy in favor of enforcing arbitration agreements, as best exemplified in the Supreme Court’s recent Epic Systems decision. This aspect of the holding is important for any future Board cases involving the legality of arbitration agreements.

Second, the Board’s decision to find the confidentiality provision here lawful was due in large measure to the fact that the clause was narrowly tailored to evidence uncovered during arbitration discovery and the contents of the arbitration award. Broader clauses that seek to proscribe employees from discussing additional terms and conditions of employment—e.g., the underlying facts of the case—may very well be deemed unlawful, even if part of an arbitration agreement. As such, while narrower confidentiality provisions may escape scrutiny by the Board, expanding the breadth of confidential matters to go beyond what is uncovered during arbitration may prove problematic and unlawful under the Act.

Finally, this decision is consistent with the Board’s decisions, including those involving rules governing the confidentiality of workplace investigations, in that it attempts to harmonize the NLRA with the myriad other federal laws governing employment.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.