American Medical Response of Connecticut, Inc . v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2023 Decided February 16, 2024
No. 22-1261
AMERICAN M EDICAL R ESPONSE OF C ONNECTICUT, INC .,
P ETITIONER
v.
NATIONAL LABOR R ELATIONS B OARD ,
R ESPONDENT
Consolidated with 22-1283
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Kaitlin Kaseta Lammers argued the cause and filed the
briefs for petitioner.
Greg P. Lauro, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Jennifer A. Abruzzo, General Counsel, Ruth E. Burdick, Deputy
Associate General Counsel, David Habenstreit, Assistant
General Counsel, and Kira Dellinger Vol, Supervisory

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Attorney. Milakshmi V. Rajapakse and Kellie J. Isbell,
Attorneys, entered appearances.
Before: M ILLETT and R AO , Circuit Judges, and GINSBURG,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge R AO .
R AO , Circuit Judge: American Medical Response of
Connecticut (“AMR”) refused to fulfill information requests
from its union because, it claimed, the emergency provision of
its collective bargaining agreement excused it from providing
that information during the COVID-19 pandemic. The
National Labor Relations Board concluded AMR’s refusal
violated the duty to bargain under the National Labor Relations
Act (“NLRA”), regardless of the collective bargaining
agreement’s terms. We disagree. As this Circuit has repeatedly
held, abiding by the terms of a bargained-for contract is a
defense to a charge that a company failed to bargain. We
therefore grant AMR’s petition, vacate the Board’s order, and
remand for the Board to consider AMR’s contractual defense.
I.
A.
AMR operates ambulances and other medical
transportation and employs emergency medical technicians
and paramedics. In AMR’s New Haven division, these
employees are represented by the International Association of
EMTs and Paramedics (“Union”). The Union and AMR
concluded a collective bargaining agreement that covered 2019
through 2021.

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The spread of COVID in March 2020 created unique
challenges for AMR and its employees. Front-line medical
workers faced severe health risks. Widespread social
distancing and lockdowns caused demand for medical
transportation to plummet. That month, AMR invoked the
emergency provision of the collective bargaining agreement,
§ 23.03, and cut shifts to reflect reduced demand.
As the pandemic continued, conflicts arose between the
Union and AMR. In early May 2020, the Union president
raised three issues to AMR. First, he expressed concerns that
AMR had shifted work to a non-Union division by allowing
that division’s ambulances to operate in New Haven.1 Second,
he relayed worker complaints that the company was holding
workers past the end of their shifts due to emergency needs.
Finally, he asked AMR to cut shifts based on seniority, as
required by the collective bargaining agreement.
The Union and AMR discussed these concerns over the
next three months. The Union also sent AMR four letters
requesting information to investigate potential grievances
related to these concerns. AMR responded to some of these
requests. It explained seniority was not considered when
cutting shifts but maintained § 23.03 and COVID exempted
AMR from that requirement. The company provided lists of
shifts that were cut. Addressing the request for response time
policies, AMR explained such policies did not exist. But AMR
refused to provide responses to five of the Union’s requests,
1 Similar concerns previously arose in 2019 when the Union filed a
grievance alleging AMR shifted work from the New Haven division
to a non-Union division under the false pretext of keeping ambulance
response times short. The Union and AMR informally resolved that
grievance.

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which sought: (1) a list of Union members removed from the
schedule; (2) New Haven call volume data; (3) data on outside
crews responding in the New Haven coverage area; (4) New
Haven response times; and (5) a list of Union members affected
by shift cuts.
The Union escalated its concerns through the grievance
process of its collective bargaining agreement before filing a
charge with the Board alleging that AMR “failed/refused to
provide information to the Union.”
B.
The Regional Director filed a complaint against AMR
alleging the company’s failure to provide information violated
the statutory duty to bargain collectively. In response, AMR
asserted five affirmative defenses,2 all of which the
administrative law judge (“ALJ”) rejected. We address only
one of those defenses, namely that the Union, through the
collective bargaining agreement, “waived any rights to the
requested information.”
On this issue, the ALJ first stated the Board “does not pass
upon the merits of the grievance or matter in dispute” when
determining whether information requests are “relevant” to a
grievance. He held it was, therefore, “unnecessary, in fact
inappropriate … to evaluate the merits of [AMR’s] contractual
waiver arguments.” He nonetheless gestured toward the legal
standards for evaluating waiver, saying that AMR “failed to
show that the Union, contractually or otherwise, clearly and
unmistakably waived its right to the relevant information at
2 The complaint also alleged AMR’s failure to provide response time
policies was a violation. The administrative law judge accepted
AMR’s factual defense that such policies did not exist. This issue is
not contested on appeal.

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issue,” and that Board precedent foreclosed indirect waiver of
grievance-related information requests. The ALJ concluded
that AMR withheld information in violation of the NLRA’s
duty to bargain and ordered AMR to provide the requested
information. The Board adopted the ALJ’s opinion in all
material respects and largely affirmed the remedy requiring
AMR to provide the information.
AMR petitions for review, and the Board files a cross-
application for enforcement.
II.
“Legal standards promulgated by the Board under the
NLRA must be rational and consistent with the Act, and
applications of those standards in individual cases must be
reasonable and reasonably explained.” Circus Circus Casinos,
Inc. v. NLRB, 961 F.3d 469, 475 (D.C. Cir. 2020) (cleaned up).
“A Board decision does not rest on reasoned decisionmaking if
it fails to offer a coherent explanation of agency precedent.”
Commc’ns Workers of Am. v. NLRB, 994 F.3d 653, 658 (D.C.
Cir. 2021) (cleaned up). We will set aside a Board decision that
is “arbitrary or capricious,” “contrary to law,” or not
“supported by substantial evidence in the record as a whole.”
Oak Harbor Freight Lines, Inc. v. NLRB, 855 F.3d 436, 440
(D.C. Cir. 2017).
III.
AMR raised a threshold contractual defense to the failure-
to-bargain charge, namely that under § 23.03 of the collective
bargaining agreement, AMR was not responsible for providing
the requested information during an emergency. That section
provides:

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Section 23.03 – Disasters
A. Local Disasters
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.
AMR says this provision relieves it of the obligation to provide
the information both directly and indirectly. First, AMR
maintains that § 23.03 directly relieves the contractual
obligation to provide the requested information. Under § 16.08
of the agreement, AMR must “produce non-privileged and
non-confidential information relevant to … [a] grievance.”
AMR argues that when information requests “relat[e] to
scheduled paid time off, job posting, shift changes and
transfers,” § 23.03 excuses AMR from providing the
information during an emergency.3 Second, to the extent
§ 23.03 relieved AMR from scheduling, job posting, and shift
change duties due to the COVID-19 pandemic, AMR argues
3 Section 23.03’s waiver of contractual obligations rather than
statutory obligations has important implications for AMR’s claim.
Our precedent describes “two separate” and “analytically distinct”
inquiries: first, whether a matter is “‘covered by’ or ‘contained in’
the collective bargaining agreement” and, second, whether a union
has waived the statutory right to bargain over a matter. Dep’t of the
Navy v. FLRA, 962 F.2d 48, 56–57 (D.C. Cir. 1992). Because § 23.03
operates on contractual obligations, we interpret AMR’s direct claim
as pertaining to the first inquiry.

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that it also indirectly eliminates the Union’s right to request
information about a potential grievance relating to those duties.
The Board determined it was “unnecessary, in fact
inappropriate, … to evaluate the merits of [AMR’s] contractual
waiver arguments.” The Board, however, must enforce
collective bargaining agreements, which here required
determining whether the agreement directly or indirectly
excused AMR from providing the information requested by the
Union. We therefore hold the Board’s failure to consider
AMR’s contractual defense was contrary to law.
A.
As a threshold matter, the Board was required to decide
the merits of AMR’s contractual defense. The NLRA
establishes a duty to bargain that “has long been acknowledged
to include a duty to supply a union with requested information
that will enable the union to negotiate effectively and to
perform properly its other duties as bargaining representative.”
Oil, Chem. & Atomic Workers Loc. Union No. 6-418 v. NLRB,
711 F.2d 348, 358 (D.C. Cir. 1983) (cleaned up); see also 29
U.S.C. § 158(a)(5); Tchrs. Coll. v. NLRB, 902 F.3d 296, 301
(D.C. Cir. 2018). Like other subjects of collective bargaining,
the duty to provide information may be modified by agreement
between employer and union. Wilkes-Barre Hosp. Co. v.
NLRB, 857 F.3d 364, 376 (D.C. Cir. 2017) (explaining that a
union may “exercis[e] its right to bargain about a particular
subject by negotiating for a provision in a collective bargaining
contract that fixes the parties’ rights” (cleaned up)).
Courts and the Board “are bound to enforce lawful labor
agreements as written.” NLRB v. U.S. Postal Serv., 8 F.3d 832,
836 (D.C. Cir. 1993); cf. Textile Workers Union v. Lincoln
Mills of Ala., 353 U.S. 448, 455 (1957) (explaining the “federal

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policy that federal courts should enforce [collective
bargaining] agreements on behalf of or against labor
organizations and that industrial peace can be best obtained
only in that way”). Determining parties’ rights under a
collective bargaining agreement is a matter of contract
interpretation. Wilkes-Barre Hosp. Co., 857 F.3d at 376. When
a contract settles a union’s rights, ordinary contract
interpretation determines the scope of those rights. See, e.g.,
U.S. Postal Serv., 8 F.3d at 836; Loc. Union No. 47, Int’l Bhd.
of Elec. Workers v. NLRB, 927 F.2d 635, 641 (D.C. Cir. 1991)
(requiring the Board to give “full effect to the plain meaning
of” the contract).
A provision that narrows information rights is a part of a
collective bargaining agreement, the same as any other
contractual term. See Gannett Rochester Newspapers v. NLRB,
988 F.2d 198, 199, 203 (D.C. Cir. 1993) (treating a contract
provision excusing company from providing information the
same as other provisions excusing the company from statutory
bargaining obligations).
The Board here concluded that it was unnecessary to
consider AMR’s contractual defense before determining that
AMR’s refusal to provide information constituted a statutory
failure to bargain. In addition to violating the NLRA’s
requirement that the Board enforce contracts, this approach
breaks with longstanding Board precedent. As the Board has
repeatedly recognized, it must determine whether a collective
bargaining agreement relieves the employer of the duty to
provide information. See, e.g., Quality Bldg. Contractors, Inc.,
342 NLRB 429, 432 (2004) (“A union can relinquish its
statutory right to information.”); see also, e.g., Bos. Mut. Life
Ins. Co., 170 NLRB 1672, 1672 (1968) (holding that a contract
excusing the company from providing information was a
defense to an alleged § 8(a)(5) violation); N.Y. Tel. Co., 299

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NLRB 351, 352–53 (1990) (rejecting, on the merits, the
employer’s argument that the contract excused it from
providing information).
Rather than address AMR’s contractual defense as such,
the Board incorrectly framed the argument as one about the
“relevance” of the information. When determining whether
information is relevant to a grievance, the Board applies a
“discovery-type standard” and does not address the merits of
the underlying grievance. Tchrs. Coll., 902 F.3d at 302; NLRB
v. Acme Indus. Co., 385 U.S. 432, 437 (1967); Shoppers Food
Warehouse Corp., 315 NLRB 258, 259 (1994). Separate from
any question of relevance, however, AMR specifically argued
that it had no contractual duty to provide the information at all.
The question of whether the Union has a right to relevant
information is antecedent to and distinct from whether the
information is relevant. If § 23.03 relieves AMR of its
discovery obligations during an emergency, then the relevance
of the information is not at issue.
Following the NLRA and established precedent, the Board
was first required to consider whether § 23.03 of the collective
bargaining agreement relieved AMR from the obligation to
provide information, either directly or indirectly. In doing so,
the Board must apply ordinary contract interpretation
principles. Instead, it erred by putting the cart before the horse,
concluding AMR failed to provide information before
determining whether AMR had a contractual duty to provide
such information.
B.
After declining to consider the contractual defense, the
Board nonetheless articulated legal standards related to AMR’s

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direct and indirect arguments. But the Board’s discussion does
not cure its failure to address AMR’s § 23.03 arguments.
To the extent the Board explained that the collective
bargaining agreement here did not include a “clear and
unmistakable” waiver of information rights, it misconstrued
AMR’s argument. Whether an employer has an ongoing duty
to bargain during the term of an existing collective bargaining
agreement “depends upon two separate inquiries: whether the
matter about which the union seeks to negotiate is ‘covered by’
or ‘contained in’ the collective bargaining agreement; and, if
not, whether the union has somehow relinquished its right to
bargain.” Dep’t of the Navy v. FLRA, 962 F.2d 48, 56 (D.C.
Cir. 1992). As we have long held, when a “matter is covered
by the collective bargaining agreement, the union has exercised
its bargaining right and the question of waiver is irrelevant.”
U.S. Postal Serv., 8 F.3d at 836 (cleaned up); see Heartland
Plymouth Ct. MI, LLC v. NLRB, 838 F.3d 16, 19 & n.1 (D.C.
Cir. 2016). The “clear and unmistakable” standard is not a
decision on the merits of the first inquiry, i.e., whether the
contract covers the matter; it is “relevant only to the second
inquiry.” Dep’t of the Navy, 962 F.2d at 56.
The Board has now adopted this circuit’s “contract
coverage” approach. MV Transp., Inc., 368 NLRB No. 66, at
*1–21 (2019). When information rights, no less than other
matters subject to collective bargaining, are set in an
agreement, the scope of those rights turns on the meaning of
the agreement, determined through the ordinary rules of
contract interpretation. A Board ruling on the second inquiry,
whether there has been a non-contractual waiver, would not
cure a failure to decide the first inquiry, whether the contract
covered the matter.

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Furthermore, to the extent the Board’s discussion of ADT,
LLC, 369 NLRB No. 31, at *1 & n.2 (2020), vacated on other
grounds, 9 F.4th 63 (2d Cir. 2021), and Stericycle, Inc., 370
NLRB No. 89, at *1 n.5 (2021), reflects a decision on the merits
of AMR’s indirect argument, the Board failed to explain its
decision and how it comports with precedent. See Commc’ns
Workers, 994 F.3d at 658.
AMR’s argument, that § 23.03 indirectly relieves it of the
obligation to provide information, relies on both contract and
statutory interpretation. The employer’s statutory duty to
provide information is derivative of the duty to bargain. Oil,
Chem. & Atomic Workers, 711 F.2d at 358. The employer must
“supply the union with requested information that will enable
it to negotiate effectively and to perform properly its other
duties as bargaining representative.” Loc. 13, Detroit
Newspaper Printing & Graphic Commc’ns Union v. NLRB,
598 F.2d 267, 271 (D.C. Cir. 1979). For this reason, the Board
has previously held that a collective bargaining agreement
eliminating the duty to bargain over a particular issue can
indirectly eliminate the duty to provide the union information
to bargain over that issue. ADT, LLC, 369 NLRB No. 31, at *1.
The issue here differs slightly: whether a contract
eliminating an employer’s duty under a collective bargaining
agreement indirectly eliminates the company’s obligation to
provide information about a potential grievance relating to the
eliminated duty. The Board asserted that a contract excusing a
company from its underlying obligation does not, under the
NLRA, excuse the company from providing information about
related grievances. The Board relied on Stericycle, Inc., 370
NLRB No. 89 (2021), for this categorical rule, but that case
does not address the situation in this case. In Stericycle, an
employer failed to correctly deduct employees’ healthcare
contributions for four months. Id. at *17. The employer then

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unilaterally implemented a plan to deduct the shortfall from
future paychecks. While the contract excused the company
from bargaining over this remedial plan, the union still had a
potential grievance based on the employer’s incorrect
deductions. Id. at *1 n.5. The contract excused the company
from one duty, but the grievance was based on a different duty.
Stericycle does not address the situation present here, in which
the contract purportedly excuses the company from the duty
that is the subject of the grievance. In both ADT and Stericycle,
the Board’s reasoning turned on the relationship (or lack of
relationship) between what the contract excused and the
information the union requested. The Board’s unexplained
attempt to recast Stericycle as a categorical rule about
grievance-related information is arbitrary and capricious.
* * *
The National Labor Relations Act’s system of bargaining
requires enforcement of the terms of collective bargaining
agreements, including those provisions that narrow a union’s
information rights. We grant AMR’s petition for review and
deny the Board’s cross-application for enforcement. We do not
decide whether § 23.03 excused AMR, either directly or
indirectly, from the obligation to respond to these information
requests. Because these interpretive issues were not fully
briefed, we vacate the order and remand for the Board to
consider these issues in the first instance. The Board should
also consider whether AMR forfeited or failed to exhaust this
defense with respect to any of the information requests. As
resolution of this threshold contractual issue may impact the
other issues presented, we do not consider them here.
So ordered.

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