Date: Apr 16, 2026

Technical Refusal to Bargain Cannot Create Appellate Jurisdiction to Review a Nonfinal Decertification-Petition Dismissal

Case:: Rieth-Riley Constr. Co., Inc. v. NLRB (6th Cir. Apr. 13, 2026)
Court:: United States Court of Appeals for the Sixth Circuit
Posture:: Petition for review and cross-application to enforce NLRB order
Holding (core):: Employer could not invoke the “technical refusal to bargain” doctrine to obtain judicial review of the Board’s dismissal of decertification petitions; refusal to bargain therefore violated the NLRA, and the Board’s order was enforced.

I. Introduction

This decision arises from an unusually long-running breakdown in collective bargaining between Rieth-Riley Construction Co., Inc. (“Rieth-Riley” or “the Company”) and Local 324, International Union of Operating Engineers, AFL-CIO (“the Union”). After the Union withdrew from a multiemployer agreement to bargain on a single-employer basis in 2018, the relationship devolved into protracted litigation, a continuing strike, and multiple unfair-labor-practice proceedings.

The case presented four interlocking issues: (1) whether the Union waived bargaining over the Company’s unilateral wage increases in 2021 and 2022; (2) whether the Company withdrew recognition from the Union; (3) whether the Company’s announced “refusal to bargain” and refusal to furnish information could be excused as a “technical refusal to bargain” designed to secure judicial review of the Board’s dismissal of employee decertification petitions; and (4) whether certain objections to the Board’s remedy were jurisdictionally barred for failure to present them to the Board.

II. Summary of the Opinion

Unilateral wage increases: The Sixth Circuit upheld the Board’s finding that Rieth-Riley violated § 8(a)(1) and § 8(a)(5) by implementing wage increases in 2021 and 2022 without bargaining. The Union did not waive bargaining because the Company failed to provide “clear and unequivocal notice” of the specific changes.
Withdrawal of recognition: Substantial evidence supported the Board’s conclusion that Rieth-Riley’s actions, taken together (multi-year unilateral changes, a categorical refusal to bargain, and refusal to provide information), evidenced an intent to “completely sever its relationship with the Union.”
Refusal to bargain as “technical”: The Company’s attempt to refuse bargaining to obtain review of the Board’s dismissal of decertification petitions failed. A dismissal that preserves the status quo does not create or alter a bargaining obligation and is not indirectly reviewable via § 9(d); thus, the refusal to bargain was not “technical” but unlawful.
Remedy challenge forfeited: The court lacked jurisdiction over an objection to the Board’s purported expansion of the bargaining order because it was not urged before the Board as required by § 10(e).

The court denied the Company’s petition for review and granted enforcement of the Board’s order.

III. Analysis

A. Precedents Cited

1. Standards of review and deference

Beth Isr. Hosp. v. NLRB and NLRB v. Starbucks Corp. framed the court’s approach: de novo review of the Board’s legal conclusions and substantial-evidence review of factual findings and law-to-fact applications.
Hendrickson USA, LLC v. NLRB, Frenchtown Acquisition Co. v. NLRB, and Urias-Orellana v. Bondi supplied the “substantial evidence” yardstick and reinforced that appellate disagreement with a plausible Board view is not a basis to overturn.
Biestek v. Berryhill was used for the general formulation of the substantial-evidence concept (“reasonable mind” adequacy).

2. Unilateral change, mandatory subjects, and waiver

Fibreboard Paper Prods. Corp. v. NLRB and NLRB v. Plainville Ready Mix Concrete Co. anchored the rule that wages are a mandatory subject of bargaining and unilateral changes ordinarily violate § 8(a)(5).
Dupont Dow Elastomers, L.L.C. v. NLRB, NLRB v. Henry Vogt Mach. Co., and Metro. Edison Co. v. NLRB supplied the court’s two-part waiver framework: (i) “clear and unequivocal notice,” and (ii) “clear and unmistakable” relinquishment.
Bell Atl. Corp. provided the corollary that a union must act with “due diligence” to request bargaining—but only after receiving proper notice.
Sunrise Nursing Home, Inc. supported the court’s rejection of the Company’s argument that the Board had “heightened” the notice standard; the Board’s “adequate/sufficient” notice cases still require “clear and unequivocal” notice.
San Juan Tchrs. Ass'n was critical to the notice holding: generalized statements about possible future changes do not force a union to demand bargaining to avoid waiver.
Standard Candy Co. countered the Company’s “Davis-Bacon Act compels the amount” theory by illustrating that even statutory wage floors can leave negotiable space above the minimum.

3. Withdrawal of recognition

Vanguard Fire & Supply Co. v. NLRB and Levitz Furniture Co. of the Pac. framed the general rule: withdrawal of recognition is unlawful unless the union has in fact lost majority support (and post-Levitz, mere employer “belief” is insufficient). The opinion noted Johnson Controls, Inc. as later overruling Levitz on other grounds, but relied on Levitz for the majority-support premise.
Because Rieth-Riley conceded the Union’s continuing presumption of majority support, the dispositive question became whether the Company’s conduct amounted to withdrawal. Douglas Autotech Corp. supplied the test: whether the employer intended to “completely sever its relationship with the Union.”
Lou's Produce, Inc. provided the contextual approach—examining statements and actions together.
Arbah Hotel Corp. and Corson & Gruman Co. supported the Board’s inference of withdrawal from a combination of serious unfair labor practices, including unilateral changes, refusal to bargain, and refusing information. The court contrasted Douglas Autotech Corp. to show why continued information-sharing and effects bargaining there defeated a withdrawal finding.

4. The “technical refusal to bargain” doctrine and appellate jurisdiction

Kindred Nursing Ctrs. E., LLC v. NLRB (citing Pittsburgh Plate Glass Co. v. NLRB) supplied the basic mechanism: an employer can sometimes obtain judicial review of otherwise unreviewable representation decisions by refusing to bargain and then litigating the resulting unfair-labor-practice order.
The court placed that mechanism within the NLRA’s jurisdictional structure, citing Am. Fed'n of Lab. v. NLRB (no direct review of representation orders), Boire v. Greyhound Corp. (indirect review only when representation issues eventuate in an unfair-labor-practice finding), and United Nat. Foods, Inc. v. NLRB (no jurisdiction absent statutory authorization).
Terrace Gardens Plaza, Inc. v. NLRB described the doctrine’s function: using invalid certification as an affirmative defense to a refusal-to-bargain charge.
The crucial limiting principle came from Heartland Hum. Servs. v. NLRB: until decertification is complete, the employer’s obligations remain unchanged; refusal to bargain remains an unfair labor practice. The court integrated that with Boire v. Greyhound Corp.’s statement that § 9(d) review is aimed at situations where the Board has ordered employer action “predicated upon the results of the election.”
The court declined to treat decisions “lurking” on jurisdiction as controlling, relying on Ariz. Christian Sch. Tuition Org. v. Winn and Webster v. Fall.
Cases advanced by Rieth-Riley were distinguished:
- NLRB v. Accurate Web, Inc. and NLRB v. Gebhardt-Vogel Tanning Co. were tied to the pre-Levitz era when a “good-faith doubt” could justify withdrawal; under Levitz Furniture Co. of the Pac., dismissal of a petition no longer deprives the employer of that defense.
- Maccabees Mutual Life Insurance Co. v. NLRB and David Wolcott Kendall Memorial School v. NLRB involved unit-clarification determinations that controlled the bargaining obligation—i.e., classic “bargaining-unit determination[s]” supporting indirect review.
- Transportation Maintenance Services, LLC v. NLRB was deemed the “best case” factually but still distinguishable because it involved a final withdrawal closing the decertification case (reinforced by Transp. Maint. Servs., LLC), unlike a dismissal “subject to reinstatement” that kept the election results uncounted and the matter live.
Finally, the court rejected the Company’s claim that the Board implicitly accepted its “technical refusal” theory via remedy discussion referencing Ex-Cell-O Corp.. The opinion explained that Ex-Cell-O Corp. reflects concerns about speculative make-whole calculations and (in some circumstances) penalizing employers for pursuing representation questions—not an endorsement of jurisdiction where the statute does not allow it.

5. Issue-exhaustion and jurisdictional bars to review

Quickway Transp., Inc. v. NLRB enforced the principle that arguments not presented to the Board are jurisdictionally barred on appeal under § 10(e).
Van Dorn Plastic Mach. Co. v. NLRB and Woelke & Romero Framing, Inc. v. NLRB supported applying § 10(e) even to Board actions taken sua sponte where reconsideration could have been sought.

B. Legal Reasoning

1. Waiver requires specific, actionable notice—not generalized forecasting

The court treated waiver as a fact-driven inquiry and upheld the Board’s conclusion that testimony in a prior administrative hearing about past wage practices (including Davis-Bacon compliance) did not clearly convey the timing, amounts, or structure of the later 2021 and 2022 increases. Critically, the court accepted the Board’s view that the Union was not required to preemptively demand bargaining whenever an employer suggests future changes “might” occur.

2. Withdrawal of recognition may be inferred from a pattern of serious bargaining repudiation

Although Rieth-Riley did not formally declare the Union defunct and conceded the Union’s presumptive majority support, the court agreed that the Company’s overall conduct evidenced an intent to sever the relationship: repeated unilateral wage changes, a categorical announcement that it would “refuse to bargain,” and an across-the-board refusal to furnish bargaining information. The contextual approach mattered: the court did not isolate each act but assessed their cumulative message to the Union and employees.

3. The key jurisdictional rule: a “technical refusal” cannot manufacture review of a nonfinal dismissal that preserves the status quo

The opinion’s most consequential reasoning is its tight coupling of the “technical refusal to bargain” doctrine to § 9(d)’s limited pathway for indirect review. A dismissal of decertification petitions “subject to reinstatement” did not:

change the bargaining unit,
certify or decertify the Union,
create, clarify, or eliminate any bargaining obligation, or
order employer action predicated on election results.

Because the dismissal left the Company’s duty to bargain exactly as it had been “before the election,” the Company could not lawfully “test” its obligation by refusing to bargain. In effect, the court held that the technical-refusal doctrine is not a free-floating tactic; it is a jurisdictionally constrained vehicle that applies only when the representation ruling is of a type that can be reviewed indirectly via an unfair-labor-practice order.

4. Issue exhaustion is jurisdictional under § 10(e)

The court treated the Company’s challenge to the scope of the Board’s bargaining order as barred because it was not presented to the Board. This underscores that even in high-stakes, long-running labor disputes, appellate review is conditioned on preserving objections through Board procedures (including reconsideration petitions when appropriate).

C. Impact

Constrains employer “jurisdiction hooks” in decertification disputes: Employers in the Sixth Circuit cannot refuse to bargain merely to obtain court review of a Regional Director/Board decision dismissing a decertification petition when that dismissal is nonfinal and does not alter bargaining obligations. The practical result is to channel disputes back into the statutory sequence: bargaining continues unless and until a decertification election is concluded and results are certified (or some other reviewable bargaining-unit determination is made).
Strengthens “status quo” protection during blocked-charge type dismissals: By emphasizing that dismissal “subject to reinstatement” preserves the preexisting duty to bargain, the decision protects collective bargaining from being suspended by litigation strategy while representation questions remain unresolved.
Signals evidentiary rigor on waiver defenses: Employers relying on waiver must provide unions with concrete details about the contemplated change (timing, amounts, and structure), not just generalized references to statutory compliance or past practice.
Encourages holistic evaluation of withdrawal-of-recognition claims: The decision reinforces that withdrawal may be inferred where conduct collectively communicates severance—especially where refusal to bargain is paired with unilateral changes and information stonewalling.
Reinforces § 10(e) preservation discipline: Parties must raise remedial objections before the Board or risk losing appellate review altogether.

IV. Complex Concepts Simplified

Unfair labor practice (ULP): Conduct the NLRA forbids—here, refusing to bargain, changing wages unilaterally, refusing information, and effectively repudiating the union relationship (§ 8(a)(1), § 8(a)(5)).
Mandatory subject of bargaining: Topics the employer must negotiate over if the union requests—wages are mandatory (§ 8(d); see Fibreboard Paper Prods. Corp. v. NLRB).
Waiver of bargaining rights: A union can lose the right to bargain over a change only if it received “clear and unequivocal” notice and then “clearly and unmistakably” chose not to bargain (see Dupont Dow Elastomers, L.L.C. v. NLRB; Metro. Edison Co. v. NLRB).
Withdrawal of recognition: An employer treats the union as no longer the bargaining representative. Even without a formal declaration, withdrawal can be inferred if the employer’s actions show an intent to sever the relationship (see Douglas Autotech Corp.).
Technical refusal to bargain: A strategic refusal used to trigger a reviewable ULP order so a court can examine an underlying representation ruling. This works only when the representation ruling is of the kind that affects the bargaining obligation in a way reviewable under § 9(d) (see Boire v. Greyhound Corp.).
Why the “technical refusal” failed here: The Board’s dismissal of decertification petitions (subject to reinstatement) did not decide who represented employees and did not change the employer’s duty to bargain; it merely maintained the status quo. Courts therefore lack jurisdiction to review it via a refusal-to-bargain ULP.
Issue exhaustion under § 10(e): If you do not raise an objection to the Board, the court generally cannot consider it later—this is treated as a jurisdictional bar.

V. Conclusion

The Sixth Circuit’s decision does more than affirm a set of unfair-labor-practice findings; it clarifies a jurisdictional boundary with practical bite. An employer cannot convert a nonfinal, status-quo-preserving dismissal of decertification petitions into a reviewable controversy by refusing to bargain. That refusal remains an unfair labor practice because the duty to bargain continues until the Board completes a representation process that actually alters the bargaining obligation. Along the way, the court reaffirmed strict waiver requirements for unilateral wage changes, endorsed a contextual approach to inferred withdrawal of recognition, and enforced the NLRA’s issue-preservation limits on appellate review.