NLRB Republican Majority And Ralphs Grocery: Arbitration Confidentiality For Employers

NLRB Composition Shifts With Macy’s Arrival

On August 17, 2026, James R. Macy was sworn in as the newest member of the National Labor Relations Board (NLRB) after Senate confirmation on August 7. With Chairman James R. Murphy and Member Scott A. Mayer, Macy gives Republicans a 3–1 majority among the four sitting members; David M. Prouty is the fourth member, and one of the Board’s five seats remains vacant.

Before joining the NLRB, Macy served as Director of the U.S. Department of Labor’s Office of Workers’ Compensation Programs and as Acting Administrator of its Wage and Hour Division. He also practiced labor and employment law in Milwaukee for more than four decades. His Board term runs through August 27, 2030.

The Board already had a quorum, so Macy’s appointment did not newly enable it to decide cases. Its significance is the shift in voting power: the three Republican members now have the votes needed to overrule Board precedent when an appropriate case presents the issue. Although a three-member quorum may decide cases, the Board has historically treated three affirmative votes as necessary to overrule precedent, promoting stability in the NLRB’s interpretation of the NLRA.

That alignment creates a path to reconsider doctrines established or expanded during the Biden administration, including those concerning union organizing, employer speech, joint-employer liability, employee classification, and other recently shifting issues. The timing and scope of any changes will depend on the cases that come before the Board and the majority’s willingness to revisit existing precedent.

Ralphs Grocery: Arbitration Confidentiality in Focus

On August 10, 2026—before Macy’s swearing-in—the Board’s three-member panel, consisting of Chairman Murphy and Members Mayer and Prouty, issued its decision in Ralphs Grocery Co. and Terri Brown, 375 NLRB No. 25 (Aug. 10, 2026). The case involved Ralphs’s unilateral mandatory arbitration policy and arose from security guard Terri Brown’s 2009 California class action alleging meal-and-rest-break violations. After Ralphs petitioned to enforce the arbitration agreement, Brown challenged it before the NLRB. The agreement contained a class-action waiver, a savings clause preserving access to the NLRB, and confidentiality provisions.

In 2016, during the Obama Administration, the NLRB held that the class-action waiver unlawfully restricted employees’ ability to pursue claims collectively. It also held that the confidentiality provision violated the NLRA and that the agreement interfered with employees’ ability to file unfair labor practice charges. Ralphs sought review in the U.S. Court of Appeals for the Ninth Circuit.

While that challenge was pending, the Supreme Court held in Epic Systems Corp. v. Lewis (2018) that the Federal Arbitration Act (FAA) requires enforcement of arbitration agreements containing class- and collective-action waivers and that the NLRA does not override that requirement. The Ninth Circuit later vacated the class-action-waiver portion of the Board’s decision and remanded the case to the NLRB.

In 2022, the Board invited briefing on whether to reconsider two 2020 decisions: Anderson Enterprises, which permits a sufficiently clear savings clause to cure an arbitration agreement that otherwise unlawfully restricts access to administrative agencies; and California Commerce Club, which generally permits confidentiality provisions governing arbitration proceedings.

In Ralphs Grocery, the Republican majority held that the arbitration policy did not unlawfully interfere with employees’ access to or participation in NLRB processes. Applying Anderson Enterprises, the majority found the savings clause sufficiently clear and prominent to inform a reasonable employee that the agreement did not bar the filing of unfair labor practice charges. Applying the reasonable-employee standard articulated in Stericycle, it also concluded that a reasonable employee would not read the policy as restricting access to the Board’s processes.

The majority separately upheld confidentiality requirements concerning an arbitration’s content, details, and outcome. Relying on California Commerce Club, it distinguished provisions limited to the arbitration proceeding and its details from restrictions on employees’ protected workplace discussions. Under the language at issue, Ralphs could require current and former employees to keep the arbitration’s details and outcome confidential.

The majority nevertheless invalidated the policy’s separate prohibition on disclosing the existence of an arbitration. It concluded that the prohibition extended beyond the proceeding and could operate as a perpetual restriction on employees’ ability to discuss workplace conditions. The policy also could not be enforced to discipline employees for activity protected by Section 7 of the NLRA.

Ralphs Grocery is a fact- and language-specific majority holding, not blanket approval of arbitration confidentiality provisions. The decision provides useful guidance, but the precise policy language—and how a reasonable employee would understand it—remains critical.

Practical Employer Takeaways

• Audit arbitration agreements. Confirm that any NLRB savings clause is clear and prominent and preserves employees’ rights to file charges with, and participate in proceedings before, the NLRB. Review the agreement as a whole; a savings clause may not cure other unlawful language.
• Limit arbitration confidentiality appropriately. Under the language presented in Ralphs Grocery, the Board upheld confidentiality concerning an arbitration’s content, details, and outcome, but invalidated a prohibition on disclosing its existence. Address trade secrets, post-dispute settlements, privileged information, and other legally protected material in separate, carefully drafted provisions.
• Preserve Section 7 rights. Agreements and enforcement practices should not restrict employees’ rights to discuss wages or other terms and conditions of employment or to engage in protected concerted activity.
• Account for jurisdiction and timing. Federal developments do not necessarily displace state-law restrictions on employment arbitration or other employment practices. For pending matters, preserve arguments under current law, consider controlling appellate authority before revising forms or practices, and track Board decisions, court developments, and rulemaking.