Date: Apr 10, 2026

Withdrawal from Multiemployer Bargaining Is Timely if Notice Precedes the Start of Negotiations—Contract-Modification Deadlines Do Not Control Absent Commenced Bargaining

1. Introduction

Rieth-Riley Construction Co., Inc. v. National Labor Relations Board (Sixth Cir. Apr. 8, 2026) arises from a prolonged labor dispute between an Indiana-based highway contractor, Rieth-Riley Construction Company, and Local 324, International Union of Operating Engineers, AFL-CIO (the “Union”), which represented Rieth-Riley’s Michigan operating engineers. Historically, bargaining occurred through a multiemployer association, the Michigan Infrastructure and Transportation Association (“MITA”), under a statewide “Road Agreement.”

The conflict ignited in 2018 when the Union sought to withdraw from the multiemployer bargaining arrangement to negotiate individually with employers. What followed were alleged unfair labor practices, a multi-week lockout, unilateral wage and payroll actions, and a strike that continued through the litigation. The National Labor Relations Board found multiple NLRA violations and ordered Rieth-Riley to bargain. Rieth-Riley petitioned for review; the Board cross-applied for enforcement.

The key issues on appeal were:

Whether the Union’s withdrawal from multiemployer bargaining was timely under Retail Associates doctrine.
Whether Rieth-Riley committed unfair labor practices by unilateral changes (wages, “clawback” deductions) and other conduct.
Whether the 2019 strike was an unfair-labor-practice strike or merely an economic strike.
Whether the court could review Rieth-Riley’s challenge to the Board’s affirmative bargaining order (including a decertification bar) given NLRA issue-exhaustion rules.

2. Summary of the Opinion

The Sixth Circuit 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 for a successor agreement began; the contract’s 60-day modification/termination notice deadline did not control the withdrawal question in these circumstances.
Substantial evidence supported the Board’s findings that Rieth-Riley violated the NLRA through unilateral actions, including a “clawback” of fringe-benefit contributions and a 2020 wage increase implemented without bargaining.
Substantial evidence supported the Board’s determination (reversing the ALJ) that the 2019 strike was at least partly an unfair-labor-practice strike, motivated in part by the unlawful lockout and related unfair labor practice allegations.
The court 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 as required by NLRA § 10(e).

3. Analysis

3.1. Precedents Cited

A. Standards of review and deference to the Board

Beth Isr. Hosp. v. NLRB, 437 U.S. 483 (1978): Anchored the court’s framing that Board decisions receive “limited judicial review,” reinforcing deference to the agency’s role in labor policy.
NLRB v. Starbucks Corp., 159 F.4th 455 (6th Cir. 2025): Supported de novo review of the Board’s legal conclusions, including statutory interpretation—while leaving factfinding to substantial-evidence review.
Hendrickson USA, LLC v. NLRB, 932 F.3d 465 (6th Cir. 2019) and Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298 (6th Cir. 2012): Reinforced that factual findings stand if supported by substantial evidence even if the court might have decided differently.
Urias-Orellana v. Bondi, 146 S. Ct. 845 (2026): Provided the definition of substantial evidence (“more than a mere scintilla”).
Airgas USA, LLC v. NLRB, 916 F.3d 555 (6th Cir. 2019): Heightened deference to credibility determinations unless inherently unreasonable or self-contradictory.

B. Multiemployer bargaining: voluntariness, withdrawal timing, and “Retail Associates” doctrine

NLRB v. Truck Drivers Loc. Union No. 449, 353 U.S. 87 (1957): Supplied the Supreme Court’s policy rationale that multiemployer bargaining can promote “labor peace,” while not making it compulsory.
Universal Insulation Corp. v. NLRB, 361 F.2d 406 (6th Cir. 1966): Confirmed that multiemployer unit membership is voluntary—supporting the proposition that either side may seek withdrawal within governing limits.
Don Lee Distrib., Inc. v. NLRB, 145 F.3d 834 (6th Cir. 1998): Classified the scope/size of a bargaining unit as a nonmandatory subject, making insistence on multiemployer bargaining unlawful once the other side properly withdraws.
Retail Associates, Inc., 120 NLRB 388 (1958): The central Board precedent establishing that withdrawal is permitted only with adequate notice given before the contract modification date or the agreed-upon date to begin negotiations (and disallowing withdrawal after bargaining begins absent narrow exceptions).
Charles D. Bonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404 (1982): The controlling Supreme Court gloss: a party may withdraw prior to the date set for negotiation or the date negotiations actually begin, with “no barriers to withdrawal prior to bargaining,” but not after negotiations commence absent “mutual consent” or “unusual circumstances.”
NLRB v. Sheridan Creations, Inc., 357 F.2d 245 (2d Cir. 1966): Supplied the practical rationale for restricting post-commencement withdrawals—preventing breakdown of the bargaining unit.
Carpenters Loc. Union No. 345 Health & Welfare Fund v. W.D. George Constr. Co., 792 F.2d 64 (6th Cir. 1986): Sixth Circuit confirmation that withdrawal may occur at any time before bargaining commences.
Lenox Grill, 170 NLRB 1027 (1968): Used by the court to reject Rieth-Riley’s “both conditions must be met” reading; the court treated Lenox Grill as consistent with an “either/or” standard.
Kellogg Co. v. NLRB, 840 F.3d 322 (6th Cir. 2016) and Kindred Nursing Ctrs. E., LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013): Set the administrative-law constraint that the Board must follow its precedent or explicitly and rationally explain departures; the court used these to validate the Board’s continuity with Retail Associates.
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) and United States v. Woods, 571 U.S. 31 (2013): Invoked to reject Rieth-Riley’s attempt to treat case language like statutory text and to confirm the ordinary disjunctive meaning of “or.”

C. Unilateral change doctrine; duty to bargain; economic exigency

NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342 (1958): Supplied foundational duty-to-bargain-in-good-faith principles and the distinction between mandatory and nonmandatory subjects.
Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991): Supported the rule that an employer violates the Act by altering mandatory bargaining subjects without bargaining.
Bottom Line Enters., 302 NLRB 373 (1991) and RBE Elecs. of S.D., Inc., 320 NLRB 80 (1995): Defined the “economic exigency” exception and its narrow contours (including the “time is of the essence” requirement and the need for unforeseeability/beyond control for lesser exigencies).
Pleasantview Nursing Home, Inc. v. NLRB, 351 F.3d 747 (6th Cir. 2003): Emphasized the employer’s “heavy burden” and that “mere business necessity” is insufficient.
May Dep't Stores Co. v. NLRB, 326 U.S. 376 (1945), NLRB v. Katz, 369 U.S. 736 (1962), and NLRB v. Talsol Corp., 155 F.3d 785 (6th Cir. 1998): Provided the doctrinal basis that unilateral wage changes undermine collective bargaining and constitute unlawful circumvention absent notice and bargaining opportunity.
Trojan Yacht, 319 NLRB 741 (1995): Supported the reasoning that even where a law influences compensation, the employer may still have choices over which bargaining is required.

D. Strike characterization: unfair-labor-practice strike vs economic strike

Glacier Nw., Inc. v. Int'l Bhd. of Teamsters Loc. Union No. 174, 598 U.S. 771 (2023): Confirmed the NLRA’s protection of the right to strike as concerted activity.
Calex Corp. v. NLRB, 144 F.3d 904 (6th Cir. 1998): Provided the Sixth Circuit’s formulation that a strike is an unfair-labor-practice strike if motivated at least in part by the employer’s unfair labor practice.
Belknap, Inc. v. Hale, 463 U.S. 491 (1983) and NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967): Distinguished economic strike consequences (permanent replacement possible) from unfair-labor-practice strike protections (no permanent replacement).
Columbia Portland Cement Co. v. NLRB, 915 F.2d 253 (6th Cir. 1990): Treated strike type as a factual question reviewed for substantial evidence.
Jolliff v. NLRB, 513 F.3d 600 (6th Cir. 2008): Confirmed the Board may draw inferences different from the ALJ, but courts scrutinize more closely when the Board reverses the ALJ.
Larand Leisurelies, Inc. v. NLRB, 523 F.2d 814 (6th Cir. 1975): Central to the holding: unfair labor practices need only be “contributing causes,” and the employer bears the burden to show the strike would have occurred anyway.
In re 3D Enters. Contracting Corp., 334 NLRB 57 (2001) and N. Am. Coal Corp., 289 NLRB 788 (1988): Supported the Board’s ability to infer striker motivation without direct employee testimony and to weigh union-official testimony appropriately.
C-Line Express, 292 NLRB 638 (1989) (quoting Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055 (1st Cir. 1981)): Warned against “self-serving rhetoric,” but did not compel rejection of the credited testimony on this record.

E. Evidence rules in Board proceedings

3750 Orange Place Ltd. P'ship v. NLRB, 333 F.3d 646 (6th Cir. 2003) and Conley v. NLRB, 520 F.3d 629 (6th Cir. 2008): Supported the principle that the Board need not strictly adhere to the Federal Rules of Evidence so long as the relaxation is reasonable and practical.

F. Issue exhaustion and jurisdiction under NLRA § 10(e)

Quickway Transp., Inc. v. NLRB, 117 F.4th 789 (6th Cir. 2024): Reinforced that failure to raise objections before the Board deprives the court of jurisdiction to consider them.
Van Dorn Plastic Mach. Co. v. NLRB, 881 F.2d 302 (6th Cir. 1989): Applied § 10(e) to Board actions taken sua sponte.
Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (1982): Explained that even where the Board acts sua sponte, parties must preserve objections via reconsideration or rehearing to secure judicial review.

3.2. Legal Reasoning

A. The opinion’s key clarification on multiemployer withdrawal timing

The court’s most consequential doctrinal move is its sequencing rule: the determinative event for withdrawal is not a contract’s modification/termination notice deadline but whether successor negotiations have begun. Under the court’s reading of Retail Associates, Inc. as interpreted by Charles D. Bonanno Linen Serv., Inc. v. NLRB, the Union’s May 2, 2018 withdrawal was timely because “nothing more was required” than notice before negotiations began.

Rieth-Riley sought to convert the Road Agreement’s 60-day modification deadline into a hard stop for withdrawal where no bargaining date had been set. The court rejected that construction on three levels:

Precedential consistency: The Board did not deviate from Retail Associates; both Board and Supreme Court authority repeatedly tie withdrawal barriers to post-commencement bargaining.
Textual logic within precedent: Even if one reads the Retail Associates “or” closely, it functions disjunctively; Lenox Grill was treated as confirming the “either/or” nature.
Record-based factfinding: Substantial evidence supported that pre-2018 meetings were general and did not constitute “actual bargaining negotiations”; contemporaneous communications spoke of setting dates “to begin discussions.”

The upshot is practical: when bargaining has not started, a union (or employer) retains a wide berth to exit a multiemployer unit—even if contract notice provisions would have extended the agreement year-to-year.

B. Unilateral “clawback” and the narrowness of economic exigency

On the “clawback” deductions, the court applied Bottom Line Enters., RBE Elecs. of S.D., Inc., and Pleasantview Nursing Home, Inc. v. NLRB to hold that the “economic exigency” exception did not apply where the employer’s predicament was self-created and at least reasonably foreseeable.

The court’s reasoning is structured and punitive to after-the-fact “emergency” narratives:

Rieth-Riley knew (by no later than September 10, 2018) it had a § 9(a) relationship requiring maintenance of the status quo after contract expiration.
Nonetheless, it continued paying contributions to employees rather than funds, then announced a rapid payroll recoupment.
Under RBE Elecs. of S.D., Inc., lesser exigencies must be beyond control or not reasonably foreseeable; the record supported the opposite.

The attempt to recast compliance with the Davis-Bacon Act (40 U.S.C. § 3142) as the exigency failed because the pressure flowed from the employer’s own earlier choices. Notice alone did not cure the violation without a qualifying exigency.

C. Davis-Bacon and unilateral wage increases: legal obligations do not erase bargaining choices

For the 2020 unilateral $1/hour increase, the employer’s core defense was subjective: it believed the Davis-Bacon Act required the increase. The court treated that as insufficient because bargaining was still meaningful where the employer retained options (e.g., allocating compensation through different benefit/wage structures). Citing Trojan Yacht, the court emphasized that where there are “choices over which the parties could have bargained,” unilateral implementation violates § 8(a)(5).

This aspect of the opinion reinforces a compliance principle: even when a statute sets floors or prevailing rates, the employer often must still bargain over how to meet those obligations when multiple compensation configurations are available.

D. Strike motivation and evidentiary sufficiency

The court upheld the Board’s reversal of the ALJ on strike characterization. Applying Larand Leisurelies, Inc. v. NLRB, it was enough that the unlawful lockout and the unfair labor practice complaint were “contributing causes.” The evidentiary record the court found persuasive included:

Union meeting testimony describing employee concerns about lockout-related backpay and financial harm.
The timing of the General Counsel’s complaint and discussion of the rejected settlement offer.
Picket signs and strike messaging explicitly referencing “Unfair Labor Practices” and the lockout.

The court also refused to impose a categorical requirement of employee testimony, relying on N. Am. Coal Corp., and rejected broad hearsay objections without specific identified statements and without a showing that the Board’s evidentiary flexibility was unreasonable under Conley v. NLRB.

E. The jurisdictional bite of NLRA § 10(e)

Rieth-Riley’s challenge to the affirmative bargaining order failed not on the merits but on preservation: under § 10(e), objections not urged before the Board are jurisdictionally barred absent extraordinary circumstances. The court applied Quickway Transp., Inc. v. NLRB and held that the bar applies even when the Board issues the remedy sua sponte (Van Dorn Plastic Mach. Co. v. NLRB), and that a petition for reconsideration or rehearing is the vehicle to preserve such objections (Woelke & Romero Framing, Inc. v. NLRB).

3.3. Impact

Clearer withdrawal playbook in multiemployer settings: Parties in the Sixth Circuit should expect the withdrawal question to turn primarily on whether bargaining has begun, not on contractual modification deadlines—especially where “actual bargaining negotiations” have not commenced.
Constrained “economic exigency” defenses: Employers face heightened risk if they attempt unilateral changes based on emergencies that are traceable to their own prior decisions or that were reasonably foreseeable. This opinion arms unions and the Board with a strong rebuttal framework: “self-created” + “delay” undermines “time is of the essence.”
Davis-Bacon compliance does not presumptively preempt bargaining: The decision signals that prevailing wage laws rarely create a free pass for unilateral action where there are negotiable implementation choices.
Strike classification evidence: The Board may prove unfair-labor-practice strike motivation through contextual evidence and credible union-official testimony; employers must be prepared to meet Larand’s burden to show the strike would have occurred anyway.
Procedural preservation is dispositive: Remedial objections—especially to broad bargaining orders and decertification bars—must be preserved before the Board, even if the remedy was issued sua sponte.

4. Complex Concepts Simplified

Multiemployer bargaining: Multiple employers bargain together with a union as a single unit. It can stabilize labor relations, but participation is voluntary, and the unit’s scope is not a mandatory bargaining subject.
Mandatory vs. permissive (nonmandatory) subjects: Wages, hours, and working conditions are mandatory; parties must bargain. The composition/scope of the bargaining unit is permissive; neither side may insist to impasse.
§ 8(f) vs. § 9(a): In construction, § 8(f) “pre-hire” relationships can carry different post-expiration bargaining consequences. A § 9(a) relationship reflects majority representation and triggers an ongoing duty to bargain and maintain status quo.
Unilateral change doctrine: Employers generally cannot change wages/benefits unilaterally while a union represents employees; doing so undermines collective bargaining.
Economic exigency: A narrow exception allowing unilateral action only when genuine urgency compels prompt action—typically unforeseeable and beyond the employer’s control; even then, notice and bargaining obligations may remain.
Unfair-labor-practice strike vs. economic strike: If employer illegality contributes to the decision to strike, it may be an unfair-labor-practice strike, which provides stronger reinstatement protections than an economic strike.
NLRA § 10(e) issue exhaustion: Appellate courts generally cannot consider arguments not first presented to the Board; failing to seek reconsideration of a Board-issued remedy can forfeit judicial review.

5. Conclusion

The Sixth Circuit’s decision enforces the Board’s order and, most importantly, crystallizes a practical rule for multiemployer bargaining: timely withdrawal turns on whether negotiations have begun, not on contract-modification deadlines standing alone. The opinion also tightens the boundaries of unilateral employer action by rejecting “economic exigency” where the urgency is foreseeable or self-inflicted, and by treating statutory prevailing-wage compliance as compatible with (and sometimes requiring) bargaining over implementation options.

Finally, the decision underscores that procedure can be destiny in NLRA litigation: failure to preserve objections before the Board—particularly to remedial bargaining orders—can eliminate appellate jurisdiction regardless of the underlying merits.