04/15/2026: The Rieth-Riley Saga Continues in the Sixth Circuit
Wonder what this legal bill looks like.
Rieth-Riley Construction v. NLRB, 25-1073 (Sixth Circuit)
The Sixth Circuit denied Rieth-Riley Construction’s petition for review and enforced the Board’s order finding multiple NLRA violations arising from the company’s protracted bargaining dispute with Local 324, Operating Engineers. The relationship has been mired in a lockout, an ongoing strike, and serial litigation since 2018, making this Rieth-Riley’s third trip to the Sixth Circuit.
Unilateral Wage Increases. The court upheld the Board’s finding that Rieth-Riley violated Sections 8(a)(1) and 8(a)(5) by unilaterally raising wages in 2021 and 2022. The company argued the Union waived its right to bargain, pointing to executive testimony at a 2020 hearing about prior Davis-Bacon Act adjustments. The court agreed with the Board that general statements about possible future changes, without specifics on timing, amounts, or allocation, fell short of the “clear and unequivocal” notice required to establish waiver. The court also rejected Rieth-Riley’s constructive-notice theory, noting room remained to negotiate above the statutory floor, citing Standard Candy Co.
Withdrawal of Recognition. Substantial evidence supported the Board’s finding that Rieth-Riley withdrew recognition. The company conceded the Union’s presumption of majority support, so the only question was intent. The totality of conduct — years of unilateral wage increases, an explicit refusal-to-bargain letter, and failure to provide requested information — demonstrated an intent to completely sever the relationship, consistent with Arbah Hotel Corp. and Corson & Gruman Co.
Technical Refusal to Bargain. The court’s central holding rejected Rieth-Riley’s attempt to use a technical refusal to bargain to obtain judicial review of the Board’s affirmance of dismissed decertification petitions. The court held that circuit court jurisdiction under Section 9(d) extends only to representation decisions that create, clarify, or eliminate a bargaining obligation — typically after an election has been held and the Board has acted on its results, per Boire v. Greyhound Corp. The dismissal here merely maintained the status quo: the petitions were dismissed subject to reinstatement, ballots remained uncounted, and Rieth-Riley’s preexisting duty to bargain was unchanged. Citing Heartland Human Services, the court held that until a union is actually decertified, the employer’s obligations remain intact. The court distinguished cases Rieth-Riley relied on, including Transportation Maintenance Services (involving a final petition withdrawal that closed the case), older cases decided under the since-superseded good-faith-doubt standard replaced by Levitz Furniture, and unit-clarification cases where the representation decision directly controlled the unfair labor practice outcome. The court also rejected the argument that the Board endorsed Rieth-Riley’s theory by declining make-whole damages under Ex-Cell-O Corp., reading that as reflecting concerns about speculative damages rather than a jurisdictional concession.
Bargaining Order. The court declined to reach Rieth-Riley’s challenge to the scope of the bargaining order, finding it forfeited under Section 10(e) for failure to raise it before the Board.
Significant Cases Cited
Boire v. Greyhound Corp., 376 U.S. 473 (1964): Circuit courts may review Board certification orders only where the dispute results in an unfair labor practice finding, and Section 9(d) contemplates review only after an election and Board action on its results.
Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001): Requires proof of actual loss of majority support for withdrawal of recognition, replacing the prior good-faith-doubt standard.
Heartland Human Services v. NLRB, 746 F.3d 802 (7th Cir. 2014): Until a union is decertified following an election, the employer’s bargaining obligations remain unchanged and refusing them is an unfair labor practice.
Ex-Cell-O Corp., 185 NLRB 107 (1970): Rejected make-whole remedies in technical-refusal-to-bargain cases as too speculative where no successor agreement exists.
Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983): A union’s waiver of statutory rights must be “clear and unmistakable.”