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

• Published date: 05 April 2024
• Law Firm: Littler Mendelson
• Author: Dylan C. Harriger, Maura Mastrony and Jason Stanevich

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...