D.C. Circuit: NLRB Must Weigh Contract-Based Defenses and Enforce Lawful CBA Provisions

  • The NLRB is required to recognize lawful collective bargaining agreements, and as such, has a duty to determine whether CBA language directly or indirectly excuses an employer from responding to a Request for Information.
  • Contractual grievance and arbitration procedures may be an appropriate vehicle for deciding some RFI disputes.
  • Emergency or Disaster provisions may excuse an employer from furnishing information to unions.
  • While the NLRB attempts to reinstate the “clear and unmistakable waiver” approach, the D.C. Circuit reinforces the “ordinary contract interpretation” approach.

The U.S. Court of Appeals for the D.C. Circuit sent an unfair labor practice case back to the National Labor Relations Board (NLRB) because the agency failed to consider the contract-based defenses of an employer accused of violating Section 8(a)(5) of the National Labor Relations Act (NLRA or “the Act”).1 The court instructed the NLRB that it must consider and enforce lawful collective bargaining agreement (CBA) provisions on remand.

The case arose from disputes about Requests for Information (RFI) the Union made in connection with bargaining. The Union alleged that American Medical Response of Connecticut, Inc. (AMR), unlawfully withheld information despite RFIs made by the Union in 2020. AMR defended itself by claiming that the Union had contractually waived its right to the requested information. An NLRB administrative law judge (ALJ) rejected this argument, holding that AMR “failed to show that the Union, contractually or otherwise, clearly and unmistakably waived its right to the relevant information at issue.” AMR appealed to the Board, which affirmed the ALJ’s ruling. On appeal, the D.C. Circuit returned the case to the Board because it failed to consider AMR’s contractual argument. The court declared that the NLRB must utilize an “ordinary contract interpretation” / “contract coverage” approach instead of a “clear and unmistakable waiver” standard when analyzing contract-based defenses.  

Notably, as this case makes clear, contractual grievance and arbitration procedures may be an appropriate vehicle for deciding some RFI disputes. While the NLRB has historically been reluctant to do so, employers should consider asking the NLRB to defer RFI-related charges pending the outcome of arbitration where the employer believes it can assert a contract defense to producing information requested by the Union.


AMR and the Union were parties to a CBA that contained the following “Disasters” provision (Section 23.03):

The parties agree that the Employer shall be relieved of any and all obligations hereunder relating to scheduled paid time off, job posting, shift changes and transfers, in the event of and during the term of a disaster or catastrophe such as fire, flood, explosion, power failure, earthquake, or other act outside the control of the Employer and causing disruption to the Employer’s normal operations.

The Union complained to AMR during the COVID-19 pandemic that AMR shifted work to a non-union division and held employees past their shifts. The Union also requested that AMR base shift cuts on seniority, as required under the CBA. After conversations regarding these issues, the Union sent four RFIs to AMR to explore potential grievances. AMR responded to some requests but informed the Union that the Disasters provision in Section 23.03 excused AMR from considering seniority when cutting shifts. Accordingly, it did not respond to the RFI related to that issue.

The Union brought a grievance and followed it with a ULP charge alleging that AMR violated Section 8(a)(5) of the Act by failing to respond fully to the RFIs. The Region issued a complaint alleging that by failing to provide the requested information AMR violated its statutory duty to bargain.

ALJ Decision (2021)

When the case was tried before a Board ALJ, AMR asserted an affirmative defense that the Union had “waived any rights to the requested information” based on the Disasters provision (Section 23.03).

Under NLRB precedent adopted in 2019, the Board utilizes an “ordinary contract interpretation” analysis in instances where an employer asserts a contract-based defense.2 In analyzing AMR’s contractual-based argument, however, the ALJ ignored this approach, instead utilizing a “clear and unmistakable” waiver approach. The ALJ found it was “unnecessary, in fact inappropriate … to evaluate the merits of [AMR's] contractual waiver arguments” but nevertheless opined that AMR “failed to show that the Union, contractually or otherwise, clearly and unmistakably waived its right to the relevant information at issue,” adding that “board precedent” did not allow for “indirect waiver of grievance-related information requests.” The ALJ found that AMR had violated the NLRA and ordered it to provide the Union with the requested information.

Unsurprisingly,3 the Board adopted the ALJ’s decision and largely affirmed the remedy requiring AMR to provide the requested information to the Union. 

D.C. Circuit (2024)

Upon review, the D.C. Circuit held that because the NLRB must recognize lawful agreements reached in collective bargaining, it had a duty to determine whether the CBA directly or indirectly excused AMR from providing responses to the RFI. The court specifically declared that the NLRB’s failure to analyze the CBA issue “was contrary to law.” Further, the court required that on remand the NLRB must decide the merits of AMR’s contractual defense, as a threshold matter.

The court stated that the NLRB approach “br[oke] with longstanding Board precedent” because “the Board has repeatedly recognized … it must determine whether a collective bargaining agreement relieves the employer of the duty to provide information.” The court found that the NLRB mischaracterized AMR’s argument as to whether the requested information was relevant instead of whether the contract relieved it from any duty to provide the information.

The court said that inasmuch as the NLRB had previously adopted the “contract coverage” approach regarding information rights, both courts and the Board “are bound to enforce lawful labor agreements as written.”  Thus, the NLRB must decide whether the Disaster provision relieved AMR from its obligation to provide the requested information.

While the court did not decide the ultimate issue of whether AMR had a legal duty to provide the requested information, it remanded this case to the NLRB, with instructions to consider whether the contractual Disaster provision excuses AMR’s failure to provide the requested information.

Key Takeaways

  • When analyzing CBA language to determine parties’ rights, the NLRB and courts must utilize an “ordinary contract interpretation” approach.
  • CBA language can eliminate an employer’s obligation to furnish a union with information, so long as the language is otherwise lawful.
  • Emergencies do not always suspend employer obligations to bargain.
  • Abiding by the language in a CBA can be a defense to allegations that an employer violated Section 8(a)(5) of the NLRA.
  • Contractual grievance and arbitration procedures may be an appropriate vehicle for deciding some RFI disputes. Employers should consider asking the NLRB to defer unfair labor practice charges pending the outcome of arbitration where the employer can assert a contract defense to producing information requested by the Union.

See Footnotes

1 Am. Med. Response of Conn., Inc. v. NLRB, 22-1261 (D.C. 2024).

2 In MV Transportation (2019), the Board “abandoned” the “clear and unmistakable waiver” standard and instead adopted the “contract coverage” standard. See MV Transportation, Inc., 368 N.L.R.B. No. 66, (2019).  The Board outlined that, “[u]nder [the] contract coverage [approach], the Board will examine the plain language of the collective-bargaining agreement to determine whether action taken by an employer was within the compass or scope of contractual language granting the employer the right to act unilaterally.”  Id. at 2. The Board outlined that the clear and unmistakable waiver approach “requires bargaining partners to unequivocally and specifically express their mutual intention to permit unilateral employer action with respect to a particular employment term, notwithstanding the statutory duty to bargain that would otherwise apply.” See, Provena St. Joseph Medical Center, 350 N.L.R.B. 808, 811 (2007). In contrast, the ordinary contract interpretation approach requires a fact-finder to “interpret collective-bargaining agreements . . . according to ordinary principles of contract law. . .” See Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448, 456-457 (1957).

3 In 2021, President Joe Biden nominated Jennifer Abruzzo as the NLRB’s general counsel. This led to a shift in the composition of the Board, which moved away from the standard in MV Transportation. On August 12, 2021, Abruzzo issued GC Memo 21-04, which outlined various cases and subject matter areas the Board intended to reexamine, including MV Transportation which Abruzzo classified as a “doctrinal shift” that “overrul[ed]… legal precedent[].

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.