In an unpublished decision, which issued on May 3, 2016, the United States Court of Appeals for the District of Columbia made it clear that there was a “fundamental and long-running disagreement” between the Court and the Board as to the appropriate approach by which to determine whether an employer had violated Section 8(a)(5) of the NLRA when it refuses to bargain with a union over a subject allegedly contained in a collective bargaining agreement.  As the Court put it:

The Board insists such questions turn on whether the union clearly and unmistakably waived its bargaining rights on the subject through the CBA, but we have repeatedly held the proper inquiry is simply whether the subject that is the focus of dispute is covered by the agreement. Under our precedent, if the subject is covered by the contract then the employer generally has no ongoing obligation to bargain with its employees about a subject during the life of the agreement.  (citation omitted)


The employer had reduced and reallocated hours of certain of its bargaining unit employees. The Board, finding no clear and unequivocal waiver regarding such action, found an unfair labor practice.  However, the DC Circuit, in reviewing the matter, concluded that the plain language of the CBA extinguished the union’s right to bargain over the subject of the employees’ hours, including any effects of an hourly reduction.  They relied primarily on the management rights clause of the CBA.  But more importantly, the Court also stated that there was no need to effects bargain over the issue.

This obviously is a major loss for the NLRB on this issue and one which the NLRB will do battle on in the future with other courts, but the DC Circuit has made it clear that they are not buying the Board’s waiver argument in these circumstances. Hopefully other courts will follow this same path.