There must be “50 Ways to Leave Your Lover.” And yet, some disputes have a way of sticking around. The labor conflict between Rieth-Riley Construction Company and Local 324 of the International Union of Operating Engineers began in 2018 over the union’s decision to withdraw from a multi-employer bargaining arrangement and negotiate separately with each employer.
Eight years, a lockout, a still-ongoing strike, and three trips to the Sixth Circuit later, the parties still do not have a collective-bargaining agreement. In two recently published opinions, the Sixth Circuit denied Rieth-Riley’s efforts to overturn board decisions that determined its conduct violated the NLRA. These decisions offer important reminders for employers navigating contentious union relationships.
And, yes, because we love a pithy title, this is a (Paul) Simon & Garfunkel-themed post. We hope you like folk music and offer our apologies in advance.
The Backstory
Let us be lovers, we’ll marry our fortunes together. Rieth-Riley is an Indiana-based construction contractor that employs around 130 to 170 union engineers. The union bargained with Rieth-Riley as part of a multi-employer association (the “employer association”).
The union and Rieth-Riley, through the employer association, were parties to a collective-bargaining agreement (CBA) set to expire in June 2018. The CBA required 60 days’ notice before expiration for any party wishing to terminate or modify its terms. On February 19, 2018, the employer association sent the union a letter terminating the CBA and requesting dates to negotiate a successor contract. The union responded by mailing individual contractors directly, including Rieth-Riley, stating it also wished to terminate the CBA — but the union’s letter inadvertently included “reopener” language indicating that it wished to re-negotiate the CBA.
Realizing its error after its notice deadline, the union sent the employer association a letter on May 2, 2018, announcing its withdrawal from multi-employer bargaining. The employer association urged reconsideration, but the union held firm, and members voted overwhelmingly to grant general strike authority.
Cecilia, you’re breaking my heart. The end of the CBA did not improve the relationship between Rieth-Riley and the union.
- After the CBA expired, Rieth-Riley stopped deducting benefit-fund contributions and announced increases without providing the union notice or the opportunity to bargain. It repeated this pattern in 2020, 2021, and 2022.
- In September 2018, Rieth-Riley began a lockout lasting over three weeks, ending only when the parties agreed to begin mediation on a successor contract.
- Bargaining for a successor contract began in November 2018, but in May 2019, the NLRB’s general counsel filed an unfair-labor-practice complaint. The general counsel offered to settle for $1.8 million to replace income employees lost during the lockout. Rieth-Riley rejected the offer.
- On July 30, 2019, the union authorized a strike. Employees picketed with signs referencing Rieth-Riley’s “unfair labor practices,” and the union consistently stated workers were protesting the company’s rejection of the settlement offer.
- Meanwhile, some employees grew dissatisfied with the union. In March 2020, a Rieth-Riley employee filed a decertification petition (a formal request to the NLRB to hold an election to determine whether a majority of employees still wish to be represented by a union) with the NLRB. A regional director for the board ultimately dismissed the petition, finding that Rieth-Riley’s alleged unfair labor practices may have contributed to employee dissatisfaction. The board affirmed this dismissal on June 15, 2022.
- The parties planned a June 28, 2022, meeting to negotiate a successor contract, but a week before the meeting, everything fell apart after the board affirmed the decertification dismissal.
- On June 20, 2022, Rieth-Riley cancelled the meeting and announced it “refuse[d] to bargain” until it “obtain[ed] judicial review” of the board’s decertification decision. The company also stated it would not comply with pending or future information requests.
It was against the law? In January 2022, an ALJ ruled on the May 2019 complaint, finding that (1) the union’s withdrawal from the CBA was timely and lawful; (2) Rieth-Riley violated the NLRA by locking out union members; (3) Rieth-Riley violated the NLRA by unilaterally granting wage increases and stopping benefit deductions; and (4) the 2019 strike was an economic strike, not an unfair-labor-practice strike. Rieth-Riley appealed.
The board affirmed with one exception: It ruled the strike was an unfair-labor-practice strike. The board imposed an affirmative bargaining order requiring good-faith bargaining and prohibiting decertification attempts for as long as “reasonably necessary.”
In November 2022, the NLRB’s general counsel issued a new complaint targeting Rieth-Riley’s (1) 2021 and 2022 wage increases; (2) withdrawal of recognition from the union; and (3) refusal to bargain and provide requested information. The ALJ found against Rieth-Riley on all three counts, and the board affirmed.
Rieth-Riley appealed both board decisions to the Sixth Circuit.
Asking only workman’s wages: Multiemployer Withdrawal, Unilateral Wage Changes, and the Nature of a Strike
In the first opinion, the Sixth Circuit addressed Rieth-Riley’s challenges to the board’s findings that (1) the union timely withdrew from multi-employer bargaining; (2) Rieth-Riley committed unfair labor practices by unilaterally raising wages, clawing back benefit contributions, and locking out employees; and (3) the 2019 strike was an unfair-labor-practice strike.
Withdrawal. The withdrawal analysis turned on the well-established Retail Associates framework, which permits a party to exit a multi-employer unit at any time before bargaining on a successor agreement begins. The union’s notice before actual negotiations commenced was timely.
Unilateral Wage Changes. As to Rieth-Riley’s wage increases, the court rejected Rieth-Riley’s arguments that an “economic exigency” justified its decision to claw back benefit-fund contributions without bargaining. The court emphasized that Rieth-Riley’s own actions — paying benefit contributions directly to employees despite knowing it had a duty to bargain — created the very crisis it invoked as justification. The court also held that the 2020 unilateral wage increase violated the NLRA, even though Rieth-Riley claimed the Davis-Bacon Act compelled it, because the company had choices that required bargaining before implementing the raise.
The Strike. Perhaps the most consequential part of this first opinion for future cases is the Sixth Circuit’s treatment of the 2019 strike. The board had ruled that the 2019 strike was an unfair-labor-practice strike, a critical distinction because employers cannot permanently replace unfair-labor-practice strikers. Rieth-Riley argued on appeal that no bargaining-unit employee testified about the strike’s motivations, but the Sixth Circuit held that testimony from union officials was sufficient and that the board was not required to hear from individual employees. Picket signs referencing “Unfair Labor Practices” and evidence tying the strike to the lingering effects of the unlawful 2018 lockout were enough to support the board’s conclusion.
Slow down, you move too fast: Waiver, Withdrawal of Recognition, and the Technical Refusal to Bargain
The second opinion tackled the board’s findings that Rieth-Riley violated the NLRA (1) by raising wages without consulting the union in 2021 and 2022; (2) through its withdrawal of recognition; and (3) with the explicit refusal to bargain and provide information to the union.
Wages and Waivers. Rieth-Riley argued that the union waived its right to bargain over the 2021 and 2022 wage increases because company executives had testified that prior wage adjustments were required by the Davis-Bacon Act. The Sixth Circuit disagreed, holding that such generalized testimony did not constitute the “clear and unequivocal notice” required to establish waiver without specific details about timing, amounts, or allocation between wages and benefits. As the court put it, the board “does not require a labor organization to demand negotiations every time an employer mentions a potential, future change.”
Withdrawal of Recognition. The court found that the totality of Rieth-Riley’s conduct, including unilateral wage increases over multiple years, an explicit refusal-to-bargain letter, and a failure to respond to information requests demonstrated an intent to “completely sever” its bargaining relationship with the union.
The Technical Refusal to Bargain. In response to allegations that it refused to bargain with the union or provide the union with information, Rieth-Riley did not deny its wrongdoing. Instead, Rieth-Riley claimed it refused to bargain with the union because it disagreed with the board’s prior decision to dismiss the employee’s decertification petitions.
With proper context, Rieth-Riley’s decision seems logical. While the NLRA explicitly confers judicial review for unfair-labor-practice decisions, it contains no provision extending review for representation disputes, like an order to hold an election or a dismissal of a decertification petition.
Thus, to create a reviewable issue, employers sometimes refuse to bargain with a union, inviting an unfair-labor-practice complaint subject to judicial review. The employer is not refusing because negotiations have stalled — it questions whether the certification itself was lawful. If the court agrees, there is no union and no obligation to negotiate.
The court held this strategy failed here because the dismissal of a decertification petition, unlike the certification or decertification of a union following an election, is not the kind of “bargaining unit determination” that opens the door to indirect judicial review under NLRA § 9(d). The dismissal “maintained the status quo; it did not result in the creation, clarification, or elimination of a bargaining obligation.” Rieth-Riley’s obligations to the union were “the same as they had been before,” and refusing to honor them was simply a violation of the NLRA.
So, where does this leave Rieth-Riley? After eight years slip slidin’ away and significant litigation, the board’s order to affirmatively bargain with the union is now in effect. By the terms of that order, Rieth-Riley must bargain in good faith and cannot attempt to decertify the union for as “long as reasonably necessary.”
We’d like to help you learn to help yourself: What This Means for Employers
These two decisions, read together, carry several practical lessons.
First, don’t take unilateral action without proper notice and bargaining. If your company plans to implement wage changes — even those arguably compelled by external legal requirements — vague references in prior proceedings will not suffice as notice. You must provide the union with specific, advance notice of proposed changes and a meaningful opportunity to bargain.
Second, be aware of the cumulative effect of your actions. One aggressive move may be defensible, but a pattern of unilateral changes, coupled with an explicit refusal to bargain and failure to respond to information requests, can collectively amount to withdrawal of recognition — even if unintended.
Third, understand the limits of the technical-refusal-to-bargain strategy. The Sixth Circuit has clarified that not every adverse representation decision can be challenged through a refusal to bargain. The dismissal of a decertification petition does not create a reviewable “bargaining unit determination” under § 9(d). Employers considering this approach should proceed with caution.
Finally, litigation is not a substitute for bargaining. These decisions illustrate that an adversarial, litigation-first posture can be extraordinarily costly and, at least in this case, largely ineffective.
