In Supply Technologies, LLC, the key litigated issue was whether, in a mandatory arbitration policy governing employment disputes for nonunion workers, a disclaimer that the policy does not affect employees' rights to bring or participate in government actions was sufficient to make the policy unambiguous about whether it interfered with employees' Section 7 rights.

Supply Technologies, Inc. (Supply Technologies) employs 89 workers at facilities in Minneapolis and three other Midwestern locations. In June 2010 a union filed a petition with the NLRB seeking to represent certain employees at the Minneapolis facility. This attempt at representation failed in a 22 to 22 vote held on October 18, 2010.

Three days after the results of the election were certified by the NLRB, Supply Technologies instituted an alternative dispute resolution program known as Total Solution Management (TSM). Subject to certain exceptions, the TSM program requires employees to use a three-step procedure as the sole means for resolving any claims with Park Ohio. Claims that must be brought under the TSM include all claims relating to applications for employment or termination of employment, and claims under any federal, state or local statute. The TSM provides that the only claims expressly exempted from the TSM procedure are those involving:

However, the TSM also provides that an employee can still file a charge or complaint with a government agency, and is free to cooperate with a government agency that is investigating a charge or complaint. This provision did not specifically mention any particular statute or government agency to which charges could be brought.

Supply Technologies distributed the TSM to employees, informing them to read it, sign it and return it by October 26. When several employees failed to sign the TSM, they were threatened with discharge, and ultimately Supply Technologies fired 20 employees who failed to sign the TSM.

The union filed an unfair labor practice (ULP) charge and on December 27, 2010, the NLRB's Acting General Counsel filed a complaint against Supply Technologies, alleging that the company violated the NLRA by:

An NLRB administrative law judge (ALJ) held that Supply Technologies violated the NLRA by instituting and maintaining a plan, the TSM, the provisions of which were sufficiently ambiguous that they would reasonably confuse employees as to the extent of their Section 7 rights, or otherwise would reasonably lead employees to believe that they could not file a charge with the NLRB. The ALJ also concluded that both the threats to discharge employees for not signing the TSM and the discharges themselves violated the NLRA.

Supply Technologies filed exceptions to the panel (Board) heading to the NLRB's judicial functions. The Board delegated its authority in the proceeding to a three-member panel.

On December 14, 2012, a three-member panel of the Board issued a decision in the case, affirming each of the ALJ's findings of unlawful conduct. The Board stated that, in cases where a employer's rule does not explicitly restrict Section 7 rights, a finding that those rules nonetheless interfere with Section 7 rights requires a showing of one of the following:

The Board held that the TSM violated the first prong of this test. Reasonable employees reading the TSM would understand it to restrict their right to file ULP charges or otherwise access the NLRB's processes, due to:

Although the Board acknowledged that the TSM did specifically state that employees could file a charge or complaint with government agencies, the Board concluded that this language was at best ambiguous, finding that it does not adequately revoke the provisions requiring all claims under a federal statute relating to the employee's employment be brought under the TSM. For instance, the provision:

The Board found that this ambiguity, reinforced by further inconsistencies among the various documents included as part of the TSM, is properly resolved against the drafter.

The Board noted that its conclusion was supported by its decision in U-Haul Co. of California, where it found that an employer's arbitration policy that required arbitration of all disputes relating to an employee's employment violated the NLRA. Although the policy, like the TSM, did not explicitly restrict employees' right to file a ULP, and specifically restricted its scope to those matters that courts would be authorized to hear, the Board concluded that employees would reasonably read the policy as encompassing charges with the NLRB as well.

Similarly, in D.R. Horton, Inc., the NLRB held that requiring employees, as a condition of employment, to sign an arbitration agreement prohibiting them from filing collective or class actions for employment-related claims violates the NLRA.

In dissent, Member Hayes stated that the TSM does not expressly restrict employees' rights to file charges with the NLRB. Hayes noted that the TSM:

Given these provisions, Hayes found that employees would not be confused about whether the TSM program interferes with Section 7 rights. Hayes stated that the Board majority's reasoning distorted the first prong of the test by reducing it to a finding of whether language is simply ambiguous, rather than whether the language would reasonably tend to interfere with employee's Section 7 rights.

Hayes asserted that the majority's reasoning:

The Board's ruling further muddies the waters for employers as to the language that will be required in a mandatory arbitration policy for nonunion employees in order to sufficiently apprise employees of the preservation of their Section 7 rights. The decision suggests that employers should consider expressly identifying these rights in the policy documents.

However, under the Board's reasoning, it remains unclear whether this alone would be sufficient to avoid an NLRA violation, both for maintaining the policy itself, and for threatening to discharge or discharging any employees for failing to sign the policy, and by implication heightens an employer's risk in implementing any mandatory arbitration policy.