Withdrawal from Multiemployer Bargaining Is Timely If Made Before Negotiations Begin, Regardless of Contract-Modification Deadlines

Introduction

Rieth-Riley Constr. Co. v. NLRB (6th Cir. Apr. 8, 2026) arises out of a long-running labor dispute between Rieth-Riley Construction Company, Inc. (the employer) and Local 324, International Union of Operating Engineers, AFL-CIO (the Union), with the National Labor Relations Board (the Board) defending its unfair-labor-practice findings and remedies. Historically, the Union and Rieth-Riley bargained through a multiemployer association, the Michigan Infrastructure and Transportation Association (MITA).

The central legal flashpoint was the Union’s 2018 decision to withdraw from multiemployer bargaining to pursue separate employer-by-employer negotiations. What followed were allegations of unlawful insistence on multiemployer bargaining, a lockout, unilateral pay and payroll changes, and a 2019 strike that the Board ultimately characterized as an unfair-labor-practice strike. The Sixth Circuit reviewed whether substantial evidence supported the Board’s key findings and whether Rieth-Riley preserved objections to the Board’s bargaining-order remedy.

Summary of the Opinion

  • The court denied Rieth-Riley’s petition for review and granted enforcement of the Board’s order.
  • The court held the Union’s withdrawal from multiemployer bargaining was timely because it occurred before negotiations began, even though it was after the Road Agreement’s contract-modification notice deadline.
  • The court upheld findings that Rieth-Riley committed unfair labor practices by, among other things, unilaterally implementing wage increases and benefit-related payroll deductions without bargaining.
  • The court upheld the Board’s determination that the 2019 strike was at least partly motivated by Rieth-Riley’s unfair labor practices (thus an unfair-labor-practice strike).
  • The court held it lacked jurisdiction to consider Rieth-Riley’s challenge to the Board’s affirmative bargaining order because the company failed to raise the objection before the Board.

Analysis

Precedents Cited

1) Standards of review and judicial deference

  • Beth Isr. Hosp. v. NLRB: framed the “limited judicial review” of Board decisions.
  • NLRB v. Starbucks Corp.: confirmed de novo review of legal conclusions, including NLRA interpretation.
  • Hendrickson USA, LLC v. NLRB: applied substantial-evidence review to factual findings and law-to-fact applications.
  • Urias-Orellana v. Bondi: supplied the substantial-evidence definition (“more than a mere scintilla”).
  • Frenchtown Acquisition Co. v. NLRB: reinforced that courts do not reweigh evidence simply because they might decide differently.
  • Airgas USA, LLC v. NLRB: heightened deference to Board credibility determinations.

2) Multiemployer bargaining and withdrawal timing

  • NLRB v. Truck Drivers Loc. Union No. 449: recognized the policy value of multiemployer bargaining for labor peace.
  • Universal Insulation Corp. v. NLRB: emphasized multiemployer bargaining is voluntary.
  • Don Lee Distrib., Inc. v. NLRB: held bargaining-unit scope is a nonmandatory bargaining subject, limiting the ability to insist on multiemployer bargaining.
  • Retail Associates, Inc.: the Board’s foundational rule limiting withdrawal after negotiations begin; permits withdrawal with adequate notice before the relevant negotiation/modification benchmark.
  • Charles D. Bonanno Linen Serv., Inc. v. NLRB: Supreme Court gloss on Retail Associates, Inc.; no “barriers to withdrawal prior to bargaining,” but withdrawal after bargaining begins requires “mutual consent” or “unusual circumstances.”
  • NLRB v. Sheridan Creations, Inc.: explained the policy concern that post-commencement withdrawals can destabilize the unit.
  • Carpenters Loc. Union No. 345 Health & Welfare Fund v. W.D. George Constr. Co.: Sixth Circuit authority that withdrawal is permitted before bargaining commences.
  • Lenox Grill: used by Rieth-Riley, but read by the court as reaffirming the disjunctive nature of withdrawal timing (before expiration or negotiation date).
  • Kellogg Co. v. NLRB and Kindred Nursing Ctrs. E., LLC v. NLRB: set the framework for scrutinizing whether the Board departed from its own precedent and requiring explicit, rational justification for any departure.
  • St. Mary's Honor Ctr. v. Hicks: invoked to reject reading opinions like statutes.
  • United States v. Woods: used to reinforce the ordinary disjunctive meaning of “or.”

3) Unilateral changes, economic exigency, and good-faith bargaining

  • NLRB v. Wooster Div. of Borg-Warner Corp.: anchored the good-faith bargaining duty and the rule against insisting on nonmandatory subjects.
  • Litton Fin. Printing Div. v. NLRB: confirmed unilateral changes to mandatory subjects are unlawful absent bargaining.
  • Bottom Line Enters. and RBE Elecs. of S.D., Inc.: articulated the “economic exigency” exception and imposed strict requirements (prompt action, beyond control/not foreseeable; notice and opportunity to bargain at least in “less dire” scenarios).
  • Pleasantview Nursing Home, Inc. v. NLRB: described the employer’s “heavy burden” to prove economic exigency; “mere business necessity” is insufficient.
  • May Dep't Stores Co. v. NLRB: explained how unilateral wage actions can undermine collective bargaining and union status.
  • NLRB v. Talsol Corp. and NLRB v. Katz: reinforced that notice and opportunity to bargain are required; unilateral changes are a circumvention equivalent to refusal to bargain.
  • Trojan Yacht: supported the Board’s point that even when an external wage floor exists, employer “choices” about compensation structure can remain bargainable.

4) Strike classification (economic vs. unfair-labor-practice strike)

  • Glacier Nw., Inc. v. Int'l Bhd. of Teamsters Loc. Union No. 174: reaffirmed protection of the right to strike under the NLRA.
  • Calex Corp. v. NLRB: defined an unfair-labor-practice strike as one motivated at least in part by the employer’s unfair labor practices.
  • Belknap, Inc. v. Hale: distinguished reinstatement rights between unfair-labor-practice strikers and economic strikers.
  • NLRB v. Allis-Chalmers Mfg. Co.: described the nature of economic strikes seeking economic concessions.
  • Columbia Portland Cement Co. v. NLRB: treated strike nature as a factual question reviewed for substantial evidence.
  • Jolliff v. NLRB: required closer review when the Board draws inferences different from the ALJ.
  • Larand Leisurelies, Inc. v. NLRB: permitted unfair-labor-practice classification where unfair practices are “contributing causes”; imposed burden on employer to show strike would occur absent the unfair labor practices.
  • In re 3D Enters. Contracting Corp. and N. Am. Coal Corp.: addressed evidentiary considerations when employee testimony is absent and the Board relies on other record evidence for strike motive.
  • 3750 Orange Place Ltd. P'ship v. NLRB and Conley v. NLRB: recognized relaxed evidentiary rules in Board hearings where reasonable and practical.
  • C-Line Express (quoting Soule Glass & Glazing Co. v. NLRB): cautioned against self-serving union characterizations inconsistent with factual context.

5) Issue exhaustion and jurisdictional limits

  • Quickway Transp., Inc. v. NLRB: enforced the rule that failure to raise an issue to the Board deprives the court of jurisdiction to consider it.
  • Van Dorn Plastic Mach. Co. v. NLRB: applied issue-exhaustion even to Board actions taken sua sponte.
  • Woelke & Romero Framing, Inc. v. NLRB: explained that objections must be raised via petition for reconsideration/rehearing when available.

Legal Reasoning

1) The case’s central clarification on multiemployer-withdrawal timing

The court’s most practically significant holding is its rejection of Rieth-Riley’s attempt to convert a contract’s modification-notice deadline into a hard stop for withdrawing from a multiemployer unit. Applying Retail Associates, Inc. as interpreted by Charles D. Bonanno Linen Serv., Inc. v. NLRB, the Sixth Circuit treated the key dividing line as the commencement of negotiations, not the private contract’s “60 days’ notice” clause. Because the Board found (with substantial evidentiary support) that successor negotiations had not begun when the Union sent its May 2 withdrawal, the withdrawal was timely and lawful—even though it was about 30 days before expiration.

This matters because once the Union lawfully withdrew, the employer-side insistence on multiemployer bargaining became insistence on a nonmandatory subject (unit scope/structure), prohibited under NLRB v. Wooster Div. of Borg-Warner Corp. and reinforced by Don Lee Distrib., Inc. v. NLRB. The court thus upheld the Board’s determination that post-withdrawal lockout pressure designed to force multiemployer bargaining was unlawful.

2) Unilateral payroll changes: “economic exigency” narrowly policed

On the benefit-contribution “clawback,” Rieth-Riley attempted to fit within the “lesser” economic-exigency framework from RBE Elecs. of S.D., Inc.. The court endorsed the Board’s conclusion that the asserted exigency was not “beyond the employer’s control” and was at least reasonably foreseeable, because Rieth-Riley (after learning it had a § 9(a) relationship) still paid benefit amounts to employees rather than to the funds, thereby perpetuating the problem it later claimed required prompt unilateral action.

Importantly, the court treated Davis-Bacon compliance as not dispositive of the NLRA bargaining duty where the employer’s own handling of payments created the urgency. The opinion operationalizes Pleasantview Nursing Home, Inc. v. NLRB’s “heavy burden”: the exception is not a general “business necessity” escape hatch, and delay/foreseeability undermines any “time is of the essence” claim.

3) Unilateral 2020 wage increase: statutory compliance does not erase bargaining choices

Even assuming the Davis-Bacon Act set a required wage floor and Rieth-Riley believed it had to raise pay, the court accepted the Board’s view that the employer still had “choices” affecting total compensation structure (including benefits), making bargaining meaningful and required. Citing Trojan Yacht, the court treated the employer’s unilateral action as unlawful because it bypassed the Union entirely, in tension with NLRB v. Katz, Litton Fin. Printing Div. v. NLRB, and NLRB v. Talsol Corp..

4) Strike classification: unfair labor practices as a “contributing cause”

The Board reversed the ALJ on strike characterization, and the Sixth Circuit—mindful of Jolliff v. NLRB—“more carefully” examined the record but still found substantial evidence supporting the Board. The evidentiary anchors were: (i) a recently filed Board complaint; (ii) meeting testimony that employees continued to complain about lockout-related pay impacts; and (iii) strike paraphernalia explicitly referencing unfair labor practices and the lockout-related settlement demand.

Applying Larand Leisurelies, Inc. v. NLRB, the court held that unfair labor practices need only be “contributing causes.” The employer’s attempt to discredit the motive evidence failed because the Board may rely on non-employee testimony (see N. Am. Coal Corp.) and because the company did not persuasively show evidentiary error under the Board’s relaxed hearing rules (see Conley v. NLRB; 3750 Orange Place Ltd. P'ship v. NLRB).

5) Remedy challenge forfeited: issue exhaustion is jurisdictional

The court declined to reach the merits of the affirmative bargaining order because Rieth-Riley did not raise the objection before the Board, and thus § 10(e) barred review. Relying on Quickway Transp., Inc. v. NLRB, Van Dorn Plastic Mach. Co. v. NLRB, and Woelke & Romero Framing, Inc. v. NLRB, the opinion reinforces that parties must preserve challenges—even to remedies imposed sua sponte— via reconsideration/rehearing absent extraordinary circumstances.

Impact

  • Multiemployer bargaining practice in the Sixth Circuit: The opinion strengthens the practical rule that withdrawal timeliness turns on whether negotiations have begun, not on a CBA’s modification-notice deadline. Employers and associations cannot treat contract notice clauses as an independent statutory bar if bargaining has not commenced.
  • Increased litigation risk for “status quo” missteps after contract expiration: The decision underscores that once a § 9(a) relationship is known, unilateral pay/benefit handling can generate compounding NLRA exposure, and “economic exigency” will be tightly constrained by foreseeability and employer control.
  • Davis-Bacon and NLRA coexistence: The case signals that prevailing-wage regimes do not automatically preempt bargaining duties; where there are compensation-structure options, the employer must still provide notice and an opportunity to bargain.
  • Strike leverage: By affirming an unfair-labor-practice strike finding on “contributing cause” evidence, the opinion may encourage parties to build contemporaneous records (meeting minutes, communications, strike materials) that clarify strike motivation—because that classification affects reinstatement rights.
  • Preservation of objections to Board remedies: The jurisdictional holding is a cautionary procedural precedent: parties must timely petition the Board to preserve challenges to unexpected remedies.

Complex Concepts Simplified

  • § 8(f) vs. § 9(a): A § 9(a) relationship generally means a fully recognized majority representative with an ongoing duty to bargain and maintain the status quo after contract expiration; § 8(f) (common in construction) can involve more limited, project-based recognition, and the post-expiration duty can differ. Here, once Rieth-Riley confirmed § 9(a), the status-quo bargaining duty was central.
  • Multiemployer bargaining withdrawal: A union (or employer) can exit a multiemployer group before bargaining begins by giving adequate notice. After bargaining begins, withdrawal usually requires mutual consent or unusual circumstances.
  • Mandatory vs. nonmandatory subjects: Wages and benefits are mandatory; the size/structure of the bargaining unit (including insisting on multiemployer bargaining) is generally nonmandatory. Parties may propose nonmandatory subjects but may not insist on them as a condition of agreement.
  • Unilateral change doctrine: Employers generally cannot change wages/benefits without bargaining to agreement or impasse; doing so can undermine the union.
  • Economic exigency: A narrow exception allowing prompt action without completing bargaining only when a sudden, unforeseeable, out-of-control economic crisis makes delay impracticable; the employer bears a heavy burden.
  • Economic strike vs. unfair-labor-practice strike: If an employer’s unlawful conduct is even a partial cause, the strike may be an unfair-labor-practice strike, which typically gives strikers stronger reinstatement protections.
  • Issue exhaustion (NLRA § 10(e)): Courts generally cannot consider objections not first presented to the Board, absent extraordinary circumstances—making motions for reconsideration/rehearing critical when the Board’s final order adds or changes remedies.

Conclusion

Rieth-Riley Constr. Co. v. NLRB reinforces three core propositions with immediate practical consequences: (1) a union’s withdrawal from multiemployer bargaining is timely if made before negotiations begin, even if after a contract’s modification-notice deadline; (2) unilateral wage and benefit-related payroll actions—despite asserted statutory wage compliance—remain high-risk absent notice and bargaining, with “economic exigency” strictly limited by foreseeability and employer control; and (3) procedural preservation before the Board is jurisdictionally essential to later judicial review, especially regarding remedies.