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Labor Board Revisits Arbitration Agreements after Supreme Court’s ‘Epic’ Decision

Arbitration agreements that could be reasonably construed to prohibit filing of unfair labor practice charges with the National Labor Relations Board (NLRB) are unlawful under the National Labor Relations Act (NLRA), the NLRB has held. Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (June 18, 2019).

In so deciding, the NLRB affirmed the primacy of the employee right protected by Section 7 of the NLRA to file unfair labor practice labor charges. This right is afforded to employees regardless of whether they are represented by a union.

The ruling clarifies that the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), does not grant employers free rein to resolve all workplace disputes through arbitration. (See our article, Supreme Court Rules Class Action Waivers in Employment Arbitration Agreements Valid.)


In this case, the employer maintained a Mediation and Arbitration Agreement (referred to in the Board’s decision as the “M & AA”) from July 2012 to May 2014. The M & AA provided for arbitration of all claims “for which a federal or state court would be authorized to grant relief.” The M & AA listed the following as covered: wage claims, breach of contract claims, and statutory claims of discrimination and harassment. The M & AA also carved out certain claims from arbitration coverage, including workers’ compensation and unemployment claims. It did not, however, expressly permit or exclude filing of charges with the NLRB or other government agencies.

Subsequently, in May 2014, the employer implemented a revised arbitration agreement (referred to in the decision as the “MAA”). The MAA disclaimed any intent to prevent employees from filing and pursuing charges with the NLRB. It also disclaimed any intent to limit Section 7 rights.

Procedural History

In 2016, the NLRB found unlawful both the M & AA and the MAA. See Prime Healthcare Paradise Valley, LLC, 363 NLRB No. 169. That decision was mainly based on the requirement that employees waive their rights to pursue class or collective actions. That part of the Board’s decision was invalidated by the Supreme Court’s Epic Systems decision, in which the Court held arbitration agreements requiring individualized arbitration do not violate the NLRA.

The NLRB also had ruled in its 2016 decision that the M & AA violated the NLRA because employees reasonably would construe it to restrict their access to the NLRB’s processes. When Epic Systems was decided, the Prime Healthcare proceedings were pending at the U.S. Court of Appeals for the District of Columbia Circuit. After the Supreme Court’s ruling, the Court of Appeals denied enforcement of the Board’s order as to the part that was governed by Epic Systems. The Court of Appeals then remanded the rest of the case, regarding the issue of prohibition of filing charges, to the Board for further proceedings.  

NLRB’s Analysis

Addressing again whether the M & AA violated the NLRA, the NLRB examined the potentially problematic sections under its 2017 decision in Boeing Co., 365 NLRB No. 154. In Boeing, the Board held that when it considers a facially neutral policy that could interfere with the exercise of NLRA rights, it will evaluate: (1) the nature and extent of the potential impact on NLRA rights; and (2) any legitimate justifications associated with the rule. After conducting this evaluation, the NLRB would place each type of evaluated work rule into one of the following three categories:

Category 1: Lawful work rules do not reasonably interfere with protected rights or whose impact is outweighed by the rule’s justifications.

Category 2: Rules that warrant individualized scrutiny.

Category 3: Rules that are unlawful to maintain because they would prohibit NLRA-protected conduct and the adverse impact on NLRA rights is not outweighed by justifications for the rule.

Here, the Board reiterated the importance of the Section 7 right to use the NLRB’s processes, including through filing unfair labor practice charges. It explained that, in Epic Systems, the Supreme Court held employer-employee agreements that contain class- and collective-action waivers and stipulate that employment disputes are to be resolved by individualized arbitration must be enforced as written pursuant to the Federal Arbitration Act (FAA). However, the Board also noted that the FAA’s requirement that arbitration agreements be enforced according to their terms may be “overridden by a contrary congressional command.” Here, there was a contrary congressional command — the primacy of Section 7 rights. Thus, the Board held the FAA does not authorize arbitration agreements that interfere with an employee’s right to file charges with the NLRB.

The NLRB also recognized that the M & AA, in this case, did not expressly prohibit charge filing. It, therefore, applied Boeing Co. and held that the M & AA could reasonably be interpreted to interfere with Section 7 rights. The Board found the M & AA’s particular language, taken as a whole, could be interpreted to make arbitration the exclusive forum for resolution of all federal statutory claims, including those under the NLRA. The NLRB also explained that this “reasonable interpretation” is an objective evaluation of the document’s wording. Thus, the NLRB did not consider it to be relevant that some employees may have filed administrative charges despite the M & AA or that the employer had not used the M & AA to bar such charges.

The NLRB then applied the next step in the Boeing test by balancing the effect of the M & AA with the legitimate justification for such a policy. The NLRB found that there could not be any legitimate justification for provisions in an arbitration agreement that restrict access to the NLRB and its processes. Indeed, the Board held that any attempt to justify such a restriction “must be rejected as contrary to the judgment and intent of Congress.” The NLRB thus placed provisions that make arbitration the exclusive forum for resolution of all claims into Boeing Category 3.


Employers with employment arbitration agreements should review them to ensure that they do not expressly limit access to the Board’s processes or can reasonably be interpreted to do so.

Some open questions remain after the Board’s decision. For example, the Board expressly did not decide whether a generic “savings clause” that permits employees to use administrative proceedings would make lawful an otherwise unlawful arbitration provision like the one at issue in this case. Presumably, a future decision will address whether such a disclaimer must specifically mention the NLRB or contain other specific language.

Jackson Lewis P.C. © 2020National Law Review, Volume IX, Number 191


About this Author

Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Mr. Rosen has extensive experience advising clients developing integrated corporate-wide labor relations strategies - whether the organization is union-free, partially unionized or entirely unionized. He has led teams conducting multi-facility labor-related legal assessments where clients are seeking to develop creative, strategic legal approaches which anticipate major issues and achieve a company’s labor relations goals. Mr. Rosen also has advised clients being confronted with corporate campaigns and requests for neutrality agreements. He has represented organizations seeking to maximize management rights through their development of pro-active employee relations approaches to remain union-free. He also has advised unionized organizations on lawful negotiating strategies – in situations ranging from “hard bargaining” to recapture management rights to more “cooperative” negotiations – in all cases, providing legal advice designed to assist clients in achieving their primary goals.

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

M. Christopher Moon, Employment, Management attorney, Jackson Lewis Law firm

M. Christopher Moon is an Associate in the Salt Lake City, Utah, office of Jackson Lewis P.C. He represents management in all areas of employment law, including defending employers against discrimination and retaliation claims in state and federal court.

Mr. Moon’s practice also involves traditional labor law. He has experience handling unfair labor practice charges and labor arbitrations.

During law school, Mr. Moon was an Articles Editor of the New York University Journal of Law & Libertyand Editor in...