Petition for Writ of Certiorari — Rieth-Riley Construction Company, Inc., Petitioner v. National Labor Relations Board

Supreme Court briefJan 17, 2025

Ask Donna

What actually matters in this document.

Text

No. 24In the

Supreme Court of the United States

RIETH-RILEY CONSTRUCTION CO., INC.,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Brian J. Paul

Counsel of Record

Stuart R. Buttrick

Ryan J. Funk

A lexander E. Preller

Faegre Drinker Biddle

& Reath LLP

300 North Meridian Street,

Suite 2500

Indianapolis, IN 46204

(317) 237-0300

brian.paul@faegredrinker.com

Counsel for Petitioner

Rieth-Riley

Construction Co., Inc.

130816

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

1. T he Nat ion a l L ab or R e l at ion s Bo a r d ’s

interpretations of the National Labor Relations Act are

entitled to deference if they are “reasonably defensible.”

Ford Motor Co. v. NLRB, 441 U.S. 488, 495–97 (1979).

Congress made a “conscious decision” to “delegate[e]

to the Board . . . the primary responsibility of marking

out the scope of the statutory language. . . .” Id. at 496.

In Loper Bright Enterprises v. Raimondo, this Court

held that when a statute constitutionally delegates

discretionary authority to an agency, “courts must respect

the delegation, while ensuring that the agency acts within

it.” 144 S. Ct. 2244, 2273 (2024). The Sixth Circuit here,

citing Loper Bright, stated that it “does not defer to the

NLRB’s interpretation of the NLRA. . . .”

The first question is: Does this Court’s deferential

standard of review for NLRB interpretations of the

NLRA survive Loper Bright?

2. Congress may create multi-member agencies

led by presidentially appointed officers removable only

for cause. E.g., Humphrey’s Ex’r v. United States, 295

U.S. 602 (1935). The NLRB is an example of such an

“independent” agency. Board orders, however, are not

self-executing; the Board depends on its presidentially

appointed General Counsel to seek their enforcement in

court. On Inauguration Day 2021, the President fired the

General Counsel without cause.

The second question is: May the President remove the

NLRB General Counsel at will or only for cause?

PARTIES TO THE PROCEEDING

Petitioner is Rieth-Riley Construction Co., Inc., a

large road and highway construction contractor that was

in relevant part the respondent in the proceedings below.

Respondent is the National Labor Relations Board,

the federal agency charged with administering and

interpreting the National Labor Relations Act, and issuing

decisions and promulgating regulations thereunder.

iii

CORPORATE DISCLOSURE STATEMENT

Rieth-Riley is not a subsidiary or affiliate of a publicly

owned corporation, and no publicly held company owns

10% or more of Rieth-Riley’s stock. No other publicly

owned corporation or its affiliate has a substantial

financial interest in the outcome of this litigation.

STATEMENT OF RELATED PROCEEDINGS

Rieth-Riley Construction Co., Inc. v. Elizabeth

Kerwin et al., No. 1:21-cv-407-PLM-SJB, United States

District Court for the Western District of Michigan.

Judgment was entered on June 21, 2024, and is currently

on appeal to the Sixth Circuit Court of Appeals, No. 241690.

Rieth-Riley Construction Co., Inc. v. National Labor

Relations Board, NLRB Case Nos. 07-CA-285321, 07-CA300190, and 07-CA-300191. The opinion of the National

Labor Relations Board is reported at 373 NLRB No. 149,

and is currently on appeal to the Sixth Circuit Court of

Appeals, No. 24-2105.

Rieth-Riley Construction Co., Inc. v. National Labor

Relations Board, NLRB Case Nos. 07-CA-234085 and 07CB-226531. The opinion of the National Labor Relations

Board is reported at 374 NLRB No. 13, and is currently on

appeal to the Sixth Circuit Court of Appeals, No. 24-2123.*

* The latter two cases involve different unfair labor practice

charges and arguments than are at issue here, but Petitioner

nonetheless includes them in the interest of full disclosure.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . . iii

STATEMENT OF RELATED PROCEEDINGS . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . ix

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . x

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . . . 5

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . 10

REASONS FOR GRANTING THE WRIT . . . . . . . . . 12

Table of Contents

Page

The Sixth Circuit’s determination that

Loper Bright altered the standard of

r e v i e w for N L R B i nt e r p r e t a t ion s

of the NLRA conf licts with a flood of

Supreme Court and circuit precedent, and

has created a circuit conflict . . . . . . . . . . . . . . . . 12

1.1. The Sixth Circuit’s decision conflicts

w ith decades of Supreme Cour t

precedent and the circuit decisions

following that precedent . . . . . . . . . . . . . . . 13

1.2. The Sixth Circuit’s decision conflicts

w ith decisions of other ci rcu its

issued since Loper Bright . . . . . . . . . . . . . . 19

1.3. This case provides an ideal vehicle

for confirming that Loper Bright

did not disturb the Court’s decisions

mandating that courts defer to the

Board’s interpretations of the NLRA . . . . 22

The Sixth Circuit’s decision that the

NLRB General Counsel may be removed

at will by the President threatens the

long-recognized independence of one of the

oldest independent federal agencies . . . . . . . . . 24

2.1. Whether the President may remove

the NLRB General Counsel at will is

a question of fundamental importance

to the Board’s independence . . . . . . . . . . . . 24

vii

Table of Contents

Page

2.1.1. The Boa rd’s independence

is inextricably linked

with the General Counsel’s

independence . . . . . . . . . . . . . . . . . . . 25

2.1.2. The Sixth Circuit’s holding that

the General Counsel is subject to

at-will removal by the President

is operationally incompatible

w it h t he st r uctu re of t he

Act and historical practice . . . . . . . .28

2.1.3. Other interpretive canons do not

trump statutory structure and

historical practice . . . . . . . . . . . . . . . 31

2.1.3.1. The fact that the Board enjoys

express statutory removal

protection does not imply the

General Counsel may be fired at

will given the relevant statutes

were enacted separately . . . . . . . . 31

2.1.3.2. A statutory term of years may

be read to limit the removal

of agency of f icia ls when

considering the structure

of the agency as a whole . . . . . . . . 33

viii

Table of Contents

Page

2.1.3.3. Interpreting the NLRA to

prohibit at-will removal of

the General Counsel does

not impede the President’s

Article II responsibility to

faithfully execute the law . . . . . . . 34

2.2. This case presents an ideal vehicle for

deciding whether the President may

remove the General Counsel at will . . . . . . 37

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED AUGUST 14, 2024 . . . . . . 1a

APPENDIX B — JUDGMENT OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED AUGUST 14, 2024 . . . 27a

A PPEN DI X C — DECISIONS OF T HE

NATIONAL LABOR RELATIONS BOARD,

FILED DECEMBER 15, 2023 . . . . . . . . . . . . . . . . 29a

APPENDIX D — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

A PPEALS FOR THE SIXTH CIRCUIT,

FILED OCTOBER 23, 2024 . . . . . . . . . . . . . . . . . 122a

APPENDIX E — ORDER STAYING MANDATE

OF THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT, FILED

DECEMBER 20, 2024 . . . . . . . . . . . . . . . . . . . . . . . 124a

TABLE OF CITED AUTHORITIES

Cases

Page

Acumen Cap. Partners, LLC v. NLRB,

122 F.4th 998 (D.C. Cir. Dec. 13, 2024) . . . . . . . . . . . 20

Alaris Health at Boulevard East v. NLRB,

123 F.4th 107 (3d Cir. Dec. 9, 2024) . . . . . . . . . . . . . . 21

Allentown Mack Sales & Serv., Inc. v. NLRB,

522 U.S. 359 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Beth Israel Hosp. v. NLRB,

437 U.S. 483 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Chelsea Indus., Inc. v. NLRB,

285 F.3d 1073 (D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . 28

Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984) . . . . . . . . . . . 1, 2, 15, 16, 18, 20, 21

Collins v. Yellen,

594 U.S. 220 (2021) . . . . . . . . . . . . . . . . 4, 25, 30, 32, 38

Dish Network Corp. v. NLRB,

953 F.3d 370 (5th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 26

Exela Enter. Sols., Inc. v. NLRB,

32 F.4th 436 (5th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 31

Cited Authorities

Page

Fall River Dyeing & Finishing Corp. v. NLRB,

482 U.S. 27 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

FEC v. NRA Pol. Victory Fund,

6 F.3d 821 (D.C. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . 34

Field v. Mans,

516 U.S. 59 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Food & Drug Admin. v.

Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Ford Motor Co. v. NLRB,

441 U.S. 488 (1979) . . . . . . . . . . 2, 14, 15, 16, 18, 21, 22

Four B Corp. v. NLRB,

163 F.3d 1177 (10th Cir. 1998) . . . . . . . . . . . . . . . . . . 17

Free Enter. Fund v.

Public Co. Acct. Oversight Bd.,

561 U.S. 477 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 34, 38

Gomez-Perez v. Potter,

553 U.S. 474 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Hollingsworth v. Perry,

558 U.S. 183 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

xii

Cited Authorities

Page

Hudson Institute of Process Research Inc. v.

NLRB,

117 F.4th 692 (5th Cir. Sept. 18, 2024) . . . . . . . . . . . 19

Humphrey’s Ex’r v. United States,

295 U.S. 602 (1935) . . . . . . . . . . . . . . . . . . . 3, 24, 35, 37

International Union of Operating Eng’rs,

Loc. 150, AFL-CIO v. NLRB,

109 F.4th 905 (7th Cir. July 23, 2024) . . . . . . . . . . . . 20

Kindred Nursing Centers E., LLC v. NLRB,

727 F.3d 552 (6th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 16

Litton Fin. Printing Div. v. NLRB,

501 U.S. 190 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Loper Bright Enterprises v. Raimondo,

144 S. Ct. 2244 (2024) . . . . . . . . . . 1, 2, 11-13, 16, 18-23

Luxshare, Ltd. v. ZF Auto. US, Inc.,

15 F.4th 780 (6th Cir. 2021) . . . . . . . . . . . . . . . . . . . . 12

McLane Co. v. EEOC,

581 U.S. 72 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Meijer, Inc. v. NLRB,

130 F.3d 1209 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . 16

Monasky v. Taglieri,

589 U.S. 68 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

xiii

Cited Authorities

Page

Morrison v. Olson,

487 U.S. 654 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 35

NLRB v. Aakash, Inc.,

58 F.4th 1099 (9th Cir. 2023) . . . . . . . . . . . . . . . . 31, 33

NLRB v. Blue Sch.,

No. 23-6305-AG,

2024 WL 4746378 (2d Cir. Nov. 12, 2024) . . . . . . . . . 20

NLRB v. Fin. Inst. Emps. of Am.,

Loc. 1182, Chartered by United Food

& Com. Workers Int’l Union, AFL-CIO,

475 U.S. 192 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

NLRB v. Food Store Emps. Union, Loc. 347,

417 U.S. 1 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

NLRB v. Local Union No. 103, International

Association of Bridge, Structural, &

Ornamental Iron Workers, AFL-CIO,

434 U.S. 335 (1978) . . . . . . . . . . . . . . . . . . . . . . 13-14, 16

NLRB v. Local Union No. 1229,

Int’l Bhd. Of Elec. Workers,

346 U.S. 464 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

NLRB v. Macomb,

No. 23-1335,

2024 WL 4240545 (6th Cir. Sept. 19, 2024) . . . . . . . 22

xiv

Cited Authorities

Page

NLRB v. Maine Coast Reg’l Health Facilities,

999 F.3d 1 (1st Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . 17

NLRB v. P*I*E Nationwide, Inc.,

894 F.2d 887 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . 29

NLRB v. Prod. Molded Plastics, Inc.,

604 F.2d 451 (6th Cir. 1979) . . . . . . . . . . . . . . . . . . . . 16

NLRB v. Sears, Roebuck & Co.,

421 U.S. 132 (1975) . . . . . . . . . . . . . . . . . . . . . . . . 34, 35

NLRB v. Thill, Inc.,

980 F.2d 1137 (7th Cir. 1992) . . . . . . . . . . . . . . . . . 4, 26

NLRB v. Town & Country Elec., Inc.,

516 U.S. 85 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

NLRB v. United Food & Com.

Workers Union, Loc. 23, AFL-CIO,

484 U.S. 112 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

NLRB v. Yeshiva Univ.,

444 U.S. 672 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Overstreet v. United Bhd. of Carpenters &

Joiners of Am., Loc. Union No. 1506,

409 F.3d 1199 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . 35

Parsons v. United States,

167 U.S. 324 (1897) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Cited Authorities

Page

Phelps Dodge Corp. v. NLRB,

313 U.S. 177 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,

490 U.S. 477 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

S.E.C. v. Blinder, Robinson & Co.,

855 F.2d 677 (10th Cir. 1988) . . . . . . . . . . . . . . . . . . . 34

Sam’s Club, a Div. of Wal-Mart Stores, Inc. v.

NLRB,

173 F.3d 233 (4th Cir. 1999) . . . . . . . . . . . . . . . . . . . . 17

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) . . . . . . . . . . . . . . . . . . . 3, 25, 35-38

Severino v. Biden,

71 F.4th 1038 (D.C. Cir. 2023) . . . . . . . . . . . . . . . 24, 34

Shore Club Condo. Ass’n, Inc. v. NLRB,

400 F.3d 1336 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . 18

St. John’s Mercy Health Sys. v. NLRB,

436 F.3d 843 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . 17

Sure-Tan, Inc. v. NLRB,

467 U.S. 883 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

SW Gen., Inc. v. NLRB,

796 F.3d 67 (D.C. Cir. 2015),

aff ’d, 580 U.S. 288 (2017) . . . . . . . . . . . . . . . . . . . . . . 38

xvi

Cited Authorities

Page

U.S. Bank Nat’l Ass’n

ex rel. CW Cap. Asset Mgmt. LLC

v. Vill. at Lakeridge, LLC,

583 U.S. 387 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Perkins,

116 U.S. 483 (1886) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Wiener v. United States,

357 U.S. 349 (1958) . . . . . . . . . . . . . . . . . . . . . . 3, 24, 33

Constitutional Provisions

U.S. Const. art. II, §2 . . . . . . . . . . . . . . . . . . . . . . . 5, 11, 37

U.S. Const. art. II, §3 . . . . . . . . . . . . . . . . . . . . . . . 6, 35, 37

Statutes, Rules and Regulations

28 U.S.C. §1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

29 U.S.C. §153(a) . . . . . . . . . . . . . . . . . . . . . . . . 6, 25, 31, 32

29 U.S.C. §153(d) . . . . . . . . . . . . . . . . . . . 4, 6, 26, 29-35, 37

29 U.S.C. §154(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 26

29 U.S.C. §156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

29 U.S.C. §159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

xvii

Cited Authorities

Page

29 U.S.C. §159(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

29 U.S.C. §160(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

29 U.S.C. §160(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 36

29 U.S.C. §160(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 36

29 U.S.C. §160(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 36

29 U.S.C. §160(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 35

S. Ct. R. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

S. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24

S. Ct. R. 16.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Other Authorities

1 & 2 N.L.R.B., Legislative H istory of the

Labor Management Relations Act, 1947 (Gov.

Print Off., 1948), https://catalog.hathitrust.org/

Record/000955829 . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

96 Cong. Rec. App’x A7989-91 (1951), https://www.

govinfo.gov/content/pkg/GPO-CRECB-1950pt18/pdf/GPO-CRECB-1950-pt18-1.pdf . . . . . . . . . . 30

Robert N. Denham, And So I Was Purged, The

Saturday Evening Post (Dec. 30, 1950) . . . . . . . . . . 30

xviii

Cited Authorities

Page

NLRB, General Counsels Since 1935, https://

www.nlrb.gov/about-nlrb/who-we-are/generalcounsel/general-counsels-since-1935 . . . . . . . . . . . . 11

Notice, NLRB, General Counsel, Description of

Authority & Assignment of Responsibilities,

15 Fed. Reg. 6924 (Oct. 13, 1950) . . . . . . . . . . . . . . . . 27

Notices, Authority & Assigned Responsibilities

of General Counsel of NLRB, 20 Fed. Reg.

2175 (Apr. 1, 1955), most recently reaffirmed

in rel evant par t, 7 7 Fed. Reg. 4 5 6 9 6

(Aug. 1, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Press Release, NLRB, Peter Sung Ohr Named

Acting General Counsel (Jan. 25, 2021), https://

go.usa.gov/xeZhQ (all websites last visited

Jan. 8, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11

Pub. L. No. 74-198, §3(a), 49 Stat. 449, 451 (1935) . . . . 32

Pub. L. No. 80-101, §3(a), 61 Stat. 136, 139 (1947) . . . . .32

Harry Truman, Veto of the Taft-Hartley Labor

Bill (June 20, 1947) https://www.trumanlibrary.

gov/ librar y/public-papers/120/veto-tafthartley-labor-bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

U.S. Courts of Appeals Judicial Business, Table

B-3 (Sept. 30, 2023), https://www.uscourts.

gov/statistics/table/ b-3/judicial-business/

2023/09/30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

PETITION FOR WRIT OF CERTIORARI

This case presents the opportunity to decide two

foundational issues of vital importance to the National

Labor Relations Board and the parties that agency

regulates.

1. Last Term, in Loper Bright Enterprises v.

Raimondo, 144 S. Ct. 2244 (June 28, 2024), this Court

overruled Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), and its

requirement that federal courts defer to permissible

agency interpretations of statutes those agencies

administer. Now, courts must approach questions of

statutory interpretation de novo, consistent with the

command of Section 706 of the Administrative Procedure

Act that reviewing courts “decide all relevant questions

of law.” Loper Bright, 144 S. Ct. at 2261 & n.4. The Court

added, however, that its opinion should not be read

to suggest “that Congress cannot or does not confer

discretionary authority on agencies.” Id. at 2268. To the

contrary, “Congress may do so, subject to constitutional

limits, and it often has.” Id. When that is so, “judges

need only fulfill their obligations under the APA to

independently identify and respect such delegations of

authority, police the outer statutory boundaries of those

delegations, and ensure that agencies exercise their

discretion consistent with the APA.” Id.

With the National Labor Relations Act, Congress

did exactly what the Court in Loper Bright recognized

it could do: it “assigned to the Board the primary task”

of construing the Act and then, 12 years later, when

amending the Act, it “made a conscious decision to continue

its delegation to the Board of the primary responsibility

of marking out the scope of the statutory language. . . .”

Ford Motor Co. v. NLRB, 441 U.S. 488, 495–96 (1979).

This Court has repeatedly acknowledged this delegation

of authority in cases decided before and after Chevron.

Following the Court’s lead, the circuit courts have also

recognized that Congress delegated to the Board the

principal authority to interpret the broad language of

the Act. The Sixth Circuit has been no exception—no

exception, that is, until now.

Without so much as acknowledging this Court’s

well-developed precedent in this area, let alone the Sixth

Circuit’s own caselaw on the subject, the panel below,

citing only Loper Bright, stated that it “do[es] not defer

to the NLRB’s interpretation of the NLRA,” and instead

exercises “independent judgment in deciding whether an

agency has acted within its statutory authority.” App. 8a.

This blanket rule of non-deference squarely conflicts with

this Court’s governing precedent, it conflicts with the

precedent of other circuits decided before Loper Bright,

and it conflicts with the decisions of those circuits that

have addressed the issue since Loper Bright. Nothing

in that decision undermines, explicitly or implicitly, the

Court’s prior caselaw recognizing Congress’s “conscious”

delegation of authority to the Board to interpret the

NLRA. If anything, Loper Bright bolsters that precedent,

confirming as it does no less than three times that,

when determining the appropriate standard of review,

“the statute’s meaning may well be that the agency is

authorized to exercise a degree of discretion.” 144 S. Ct.

at 2263; see also id. at 2268 (quoted above); id. at 2273

(“[W]hen a particular statute delegates authority to an

agency consistent with constitutional limits, courts must

respect the delegation, while ensuring that the agency

acts within it.”).

Certiorari is warranted for this reason alone.

2. In Seila Law LLC v. CFPB, this Court recounted

that, “up to now,” it has recognized two exceptions

to the President’s plenary removal power—“one for

multimember expert agencies that do not wield substantial

executive power, and one for inferior officers with limited

duties and no policymaking or administrative authority.”

591 U.S. 197, 216–18 (2020) (referencing Humphrey’s

Ex’r v. United States, 295 U.S. 602 (1935), and Wiener v.

United States, 357 U.S. 349 (1958), for the first exception

and United States v. Perkins, 116 U.S. 483 (1886), and

Morrison v. Olson, 487 U.S. 654 (1988), for the second).

But the Court has yet to confront a third scenario: officers

who are indispensable to the structure and functioning

of an independent multimember agency, but who do not

themselves exercise the quasi-judicial powers that supply

the basis for that agency’s independence. See Humphrey’s

Ex’r, 295 U.S. at 628; accord Wiener, 357 U.S. at 355–56.

To put the matter more concretely in terms of the players

here: Does the President have the authority to remove the

NLRB General Counsel at will if to possess that authority

would “threaten[ ] the independence” of the NLRB itself ?

See Humphreys Ex’r, 295 U.S. at 630. That is, at its core,

the second question presented here.

This Court has long recognized the Board is entitled to

exercise its “quasi-judicial” authority over national labor

policy independent of the President’s direct oversight.

Unlike all other federal agencies, however, the Board’s

orders are not self-executing; they are enforceable if and

only if: (1) the NLRB General Counsel, at the Board’s

direction, seeks their enforcement; and (2) a federal

appellate court declares they are enforceable. The Board

is thus entirely dependent in the first instance on the

General Counsel’s advocacy to give its decisions “teeth.”

See NLRB v. Thill, Inc., 980 F.2d 1137, 1142 (7th Cir. 1992)

(Posner, J.). This statutory structure, which has been in

place for three-quarters of a century, requires the General

Counsel to have the freedom to seek enforcement of Board

decisions without fear or favor of the President.

Just as the President cannot fire Board members

at will and thus deprive them of the statutory authority

to make their independent quasi-judicial decisions, the

President cannot fire the General Counsel at will and

thus deprive the Board of its only statutory means of

effectuating its independent quasi-judicial decisions. This

appears to have been the prevailing view for nearly 75

years. Between 1947 (when Congress formally established

the position of General Counsel) and Inauguration Day

2021 (when NLRB General Counsel Peter Robb was fired

without cause), no President had ever removed a General

Counsel in the middle of his or her term without cause.

Thus, as a matter of statutory structure and historical

practice, Section 3(d) of the Act, which grants the General

Counsel “a term of four years” following appointment by

the President and confirmation by the Senate, 29 U.S.C.

§153(d), must be interpreted to preclude the at-will

removal of the General Counsel if the Board’s adjudicative

independence is to have any meaning, consistent with the

“unique need” compelled by this long-standing structure.

See Collins v. Yellen, 594 U.S. 220, 250 n.18 (2021).

Simply put, the General Counsel should never be

required to choose between performing her duty to

zealously represent the Board and bowing to the President’s

contrary wishes as a matter of self-preservation.

Certiorari is also warranted for this second reason.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit is reported at 114 F.4th 519 and is

reproduced in the Appendix at Appendix A. The opinion

of the National Labor Relations Board is reported at 372

NLRB No. 142, and is reproduced at Appendix C.

JURISDICTION

The United States Court of Appeals for the Sixth

Circuit entered its opinion and judgment on August 14,

2024, and denied Rieth-Riley’s Petition for Rehearing

En Banc, or, in the Alternative, for Panel Rehearing on

October 23, 2024. This Court has jurisdiction under 28

U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article II, Section 2 of the United States Constitution

states in relevant part:

[H]e shall nominate, and by and with the

advice and consent of the Senate, shall appoint

ambassadors, other public ministers and

consuls, judges of the supreme court, and all

other Officers of the United States, whose

appointments are not herein otherwise provided

for, and which shall be established by law[.]

Article II, Section 3 of the United States Constitution

states in relevant part:

[H]e shall take Care that the laws be faithfully

executed[.]

Section 3(a) of the National Labor Relations Act

(“NLRA”), 29 U.S.C. §153(a), states in relevant part:

[T]he Board shall consist of five . . . members,

appointed by the President by and with the

advice and consent of the Senate. . . . [Board

members] shall be appointed for terms of

five years each, excepting that any individual

chosen to fill a vacancy shall be appointed only

for the unexpired term of the member whom

he shall succeed. . . . Any member of the Board

may be removed by the President, upon notice

and hearing, for neglect of duty or malfeasance

in office, but for no other cause.

Section 3(d) of the NLRA,29 U.S.C. §153(d), states in

relevant part:

There shall be a General Counsel of the Board

who shall be appointed by the President, by and

with the advice and consent of the Senate, for a

term of four years. The General Counsel of the

Board shall exercise general supervision over

all attorneys employed by the Board (other than

administrative law judges and legal assistants

to Board members) and over the officers and

employees in the regional offices. He shall

have final authority, on behalf of the Board,

in respect of the investigation of charges and

issuance of complaints under section 160 of this

title, and in respect of the prosecution of such

complaints before the Board, and shall have

such other duties as the Board may prescribe

or as may be provided by law.

Section 4(a) of the NLRA, 29 U.S.C. §154(a), states

in relevant part:

The Board shall appoint an executive secretary,

and such attorneys, examiners, and regional

directors, and such other employees as it

may from time to time find necessary for the

proper performance of its duties. . . . Attorneys

appointed under this section may, at the

direction of the Board, appear for and represent

the Board in any case in court.

Section 6 of the NLRA, 29 U.S.C. §156, states:

The Board shall have authority from time

to time to make, amend, and rescind, in the

manner prescribed by subchapter II of chapter

5 of title 5, such rules and regulations as may

be necessary to carry out the provisions of this

subchapter.

Section 9(c)(1) of the NLRA, 29 U.S.C. §159(c)(1),

states in relevant part:

Whenever a petition shall have been filed, in

accordance with such regulations as may be

prescribed by the Board . . . the Board shall

investigate such petition and if it has reasonable

cause to believe that a question of representation

affecting commerce exists shall provide for an

appropriate hearing upon due notice. . . . If the

Board finds upon the record of such hearing

that such a question of representation exists,

it shall direct an election by secret ballot and

shall certify the results thereof.

Section 10(a) of the NLRA, 29 U.S.C. §160(a), states

in relevant part:

The Board is empowered, as hereinafter

provided, to prevent any person from engaging

in any unfair labor practice (listed in section

158 of this title) affecting commerce. This

power shall not be affected by any other means

of adjustment or prevention that has been

or may be established by agreement, law, or

otherwise[.]

Section 10(c) of the NLRA, 29 U.S.C. §160(c), states

in relevant part:

. . . If upon the preponderance of the testimony

taken the Board shall be of the opinion that any

person named in the complaint has engaged in

or is engaging in any such unfair labor practice,

then the Board shall state its findings of fact

and shall issue and cause to be served on such

person an order requiring such person to cease

and desist from such unfair labor practice,

and to take such affirmative action including

reinstatement of employees with or without

back pay, as will effectuate the policies of this

subchapter[.] . . .

Section 10(e) of the NLRA, 29 U.S.C. §160(e), states

in relevant part:

The Board shall have power to petition any

court of appeals of the United States . . .

wherein the unfair labor practice in question

occurred or wherein such person resides or

transacts business, for the enforcement of such

order . . .

Section 10(j) of the NLRA, 29 U.S.C. §160(j), states

in relevant part:

The Board shall have power, upon issuance

of a complaint as provided in subsection (b)

charging that any person has engaged in or is

engaging in an unfair labor practice, to petition

any United States district court, within any

district wherein the unfair labor practice in

question is alleged to have occurred or wherein

such person resides or transacts business, for

appropriate temporary relief or restraining

order. . . .

Section 10(l) of the NLRA, 29 U.S.C. §160(l), states

in relevant part:

Whenever it is charged that any person has

engaged in an unfair labor practice within

the meaning of paragraph (4)(A), (B), or (C) of

section 158(b) of this title, or section 158(e) of

this title or section 158(b)(7) of this title, the

preliminary investigation of such charge shall

be made forthwith and given priority over

all other cases except cases of like character

in the office where it is filed or to which it is

referred. If, after such investigation, the officer

or regional attorney to whom the matter may be

referred has reasonable cause to believe such

charge is true and that a complaint should issue,

he shall, on behalf of the Board, petition any

United States district court within any district

where the unfair labor practice in question

has occurred, is alleged to have occurred,

or wherein such person resides or transacts

business, for appropriate injunctive relief

pending the final adjudication of the Board with

respect to such matter.

STATEMENT OF THE CASE

In 2019, Operating Engineers Local 324 went on

strike against Rieth-Riley, which later filed an unfair

labor practice charge against the Union, alleging picketline misconduct. R. 1593. In 2020, while the strike was

ongoing, the Union sent two requests to Rieth-Riley,

one for subcontracting information and one for wage

information. R. 1811–12, 1820. Based on Rieth-Riley’s

responses, the Union filed two unfair labor practice

charges against the company. R. 1699, 1721. On February

5, 2021, the NLRB General Counsel’s office issued a

consolidated complaint as to both charges. R. 1778–82.

Two weeks earlier, Acting General Counsel Peter Sung

Ohr had replaced former General Counsel Peter Robb

after President Biden terminated Robb on Inauguration

Day. See Press Release, NLRB, Peter Sung Ohr Named

Acting General Counsel (Jan. 25, 2021), https://go.usa.

gov/xeZhQ (all websites last visited Jan. 8, 2025). At the

time, Robb still had approximately 10 months left on his

four-year term. See NLRB, General Counsels Since 1935,

https://www.nlrb.gov/about-nlrb/who-we-are/generalcounsel/general-counsels-since-1935.

All three charges were consolidated for hearing, and

on July 18, 2022, Administrative Law Judge Muhl issued

his decision. R. 2137–76. As to Rieth-Riley, he determined

(1) the Union’s request for subcontractor information

was relevant to bargaining, despite the Union’s prior

representations otherwise; and (2) the Union’s request

for wage information was sufficiently clear to require

some production of information, even though the request

remained partially unclear. R. 2164, 2168–69. Judge Muhl

further rejected Rieth-Riley’s defense asserting the

complaint against it was void because General Counsel

Robb had been illegally discharged. R. 2172. As to the

Union, Judge Muhl found a picketer violated the NLRA

when he assaulted a picket-line crosser with a picket sign

and spat on him. R. 2162. The Board affirmed. App. C.

In a published opinion, Judge Cole (joined by Judges

Moore and Mathis) denied Rieth-Riley’s petition for review

and granted the Board’s cross-petition for enforcement.

App. A. The panel agreed that the Union had requested

information relevant to bargaining with sufficient clarity

to permit a response. App. 16a–19a. The panel further held

that the General Counsel enjoys no removal protections

under the Act, and additionally, any such protections would

violate the President’s authority to enforce the law under

Article II. App. 8a–14a. Finally, the panel held sua sponte

that Loper Bright Enterprises v. Raimondo, 144 S. Ct.

2244 (June 28, 2024), imposed a de novo review standard

for the NLRB’s interpretations of the Act. App. 8a. RiethRiley filed a timely petition for rehearing en banc, or, in

the alternative, for panel rehearing, which was denied

on October 23, 2024. App. D. Rieth-Riley then moved for

a stay of the Sixth Circuit’s mandate pending filing and

disposition of this certiorari petition, which the court

granted on December 20, 2024, App. E, thus suggesting

that even the appellate court believes this Court could find

that the panel below erred, see Luxshare, Ltd. v. ZF Auto.

US, Inc., 15 F.4th 780, 783 (6th Cir. 2021) (“[W]hen a party

seeks a stay pending certiorari, the applicant must show

not only a reasonable probability that certiorari will be

granted but also a significant possibility that the judgment

below will be reversed” (cleaned up; citations omitted));

accord Hollingsworth v. Perry, 558 U.S. 183, 190 (2010).

REASONS FOR GRANTING THE WRIT

This case presents two issues of exceptional importance:

(1) whether Loper Bright Enterprises v. Raimondo, 144

S. Ct. 2244 (June 28, 2024), altered the Court’s standard

of review for Board decisions interpreting the NLRA;

and (2) whether the at-will termination of NLRB General

Counsel Peter Robb was lawful under the NLRA. Both

issues merit certiorari.

1. The Sixth Circuit’s determination that Loper

Bright altered the standard of review for NLRB

interpretations of the NLRA conflicts with a flood

of Supreme Court and circuit precedent, and has

created a circuit conflict.

Loper Bright did not alter the standard of review

governing Board interpretations of the NLRA. These

interpretations are entitled to deference under Supreme

Court precedent tracing back to before America’s entry

into World War II—precedent this Court has explicitly and

repeatedly reaffirmed for decades. So long as the Board’s

interpretation is reasonable, a circuit court must defer to

it, even if the reviewing court thinks it is not the “best”

interpretation of the Act. The Sixth Circuit’s decision

stands alone, directly conflicting with this precedent, as

well as a raft of circuit decisions decided both before and

after Loper Bright.

1.1. The Sixth Circuit’s decision conflicts with

decades of Supreme Court precedent and the

circuit decisions following that precedent.

Just six years after it was enacted, this Court

recognized the deference Congress conferred on the

Board to interpret the NLRA. In Phelps Dodge Corp. v.

NLRB, 313 U.S. 177 (1941), the Court stated: “A statute

expressive of such large public policy as that on which

the National Labor Relations Board is based must be

broadly phrased and necessarily carries with it the task

of administrative application,” id. at 194. While “[t]here

is an area plainly covered by the language of the Act and

an area no less plainly without it,” Congress left the rest

“to the empiric process of administration”—a process

“committed to the Board, subject to limited judicial

review.” Id. (emphasis added).

Since Phelps Dodge, the Court has made plain, again

and again, that Congress, through the broad language of

the NLRA, delegated to the Board the power to interpret

the Act, thus entitling its interpretations to deference. In

NLRB v. Local Union No. 103, International Association

of Bridge, Structural, & Ornamental Iron Workers, AFLCIO, 434 U.S. 335 (1978) (“Iron Workers”), for instance,

the Board construed a particular provision of Section 8

of the NLRA one way and the reviewing appellate court

another. This Court reversed: “The Board’s resolution of

the conflicting claims in this case represents a defensible

construction of the statute and is entitled to considerable

deference. Courts may prefer a different application of the

relevant sections, but the function of striking that balance

to effectuate national labor policy is often a difficult and

delicate responsibility, which the Congress committed

primarily to the National Labor Relations Board, subject

to limited judicial review.” Id. at 350 (cleaned up; citations

omitted). And if there remained any uncertainty about

what the Court meant to convey, it added that when the

Board has construed the Act, the courts “should not

approach the statutory construction issue de novo and

without regard to the administrative understanding of

the statutes.” Id. at 351. The court should instead defer

to that understanding so long as it is not “fundamentally

inconsistent with the structure of the Act and the function

of the sections relied upon.” Id. at 350 (citation omitted).

Similarly, in Ford Motor Co. v. NLRB, 441 U.S. 488

(1979), the Board had to decide whether certain matters

were “terms and conditions of employment” subject to

mandatory collective bargaining within the meaning of

Section 8 of the NLRA. The Board decided they were

and the appellate court enforced the Board’s order. Id. at

493–94. This Court affirmed, noting “Congress assigned

to the Board the primary task of construing [the Act]” and

then, over a decade later, made a “conscious decision” to

reaffirm that delegation when amending the Act. Id. at

495–96. So long as the Board’s construction of the statute

is “reasonably defensible,” the Court said, “it should not be

rejected merely because the courts might prefer another

view of the statute.” Id. at 497. For “[c]onstruing and

applying the duty to bargain and the language of § 8[ ] . . .

are tasks lying at the heart of the Board’s function.” Id.

Since Ford Motor Co., the Court has time and again

reaffirmed this understanding of the NLRA, separate and

apart from any reliance on Chevron-specific deference. A

few examples will make the point:

• Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891

(1984) (“Since the task of defining the term

‘employee’ [within the meaning of the Act] is

one that has been assigned primarily to the

agency created by Congress to administer

the Act, the Board’s construction of that

term is entitled to considerable deference,

and we will uphold any interpretation that

is reasonably defensible.” (cleaned up;

collecting cases)).

• NLRB v. Fin. Inst. Emps. of Am., Loc.

1182, Chartered by United Food & Com.

Workers Int’l Union, AFL-CIO, 475 U.S.

192, 202 (1986) (“Our cases have previously

recognized the Board’s broad authority to

construe provisions of the Act, and have

deferred to Board decisions that are not

irrational or inconsistent with the Act.”

(collecting cases)).

• Fall River Dyeing & Finishing Corp. v.

NLRB, 482 U.S. 27, 42 (1987) (“The Board,

of course, is given considerable authority

to interpret the provisions of the NLRA.

If the Board adopts a rule that is rational

and consistent with the Act, then the rule

is entitled to deference from the courts.”

(citation omitted)).

• Litton Fin. Printing Div. v. NLRB, 501

U.S. 190, 201 (1991) (“[W]e will uphold the

Board’s interpretation of the NLRA so long

as it is rational and consistent with the Act.”

(cleaned up; citations omitted)).

As one would expect, the circuit courts have fallen in

line with this precedent, including the Sixth Circuit (at

least until this Court decided Loper Bright). Citing this

Court’s pre-Chevron caselaw, the Sixth Circuit recognized

that it had a duty—that it “must”—“uphold the Board’s

interpretation of the Act if it is ‘reasonably defensible’”

and “may not reject the Board’s interpretation ‘merely

because the courts might prefer another view of the

statute.’” Kindred Nursing Centers E., LLC v. NLRB,

727 F.3d 552, 559 (6th Cir. 2013) (cleaned up) (quoting

Ford Motor Co. and citing Iron Workers, both supra).

Many other Sixth Circuit decisions are to the same effect.

See, e.g., Meijer, Inc. v. NLRB, 130 F.3d 1209, 1212 (6th

Cir. 1997) (“The Board’s construction of the Act should

be upheld if it is reasonably defensible.’” (quoting Ford

Motor Co.); NLRB v. Prod. Molded Plastics, Inc., 604 F.2d

451, 454 (6th Cir. 1979) (“Of course, the judgment of the

Board is subject to judicial review; but if its construction

of the statute is reasonably defensible, it should not be

rejected merely because the courts might prefer another

view of the statute.” (quoting Ford Motor Co. and citing

Iron Workers)).

So too are decisions from other circuits. Again, just a

few examples will suffice to make the point, none of which

rely on Chevron either:

• NLRB v. Maine Coa st Reg’l Health

Facilities, 999 F.3d 1, 8 (1st Cir. 2021)

(“Because Congress has delegated to the

Board the authority to implement national

labor policy, we give considerable deference

to the Board’s interpretation of the Act so

long as it is rational and consistent with the

Act.” (cleaned up; citing Supreme Court

precedent)).

• Sam’s Club, a Div. of Wal-Mart Stores,

Inc. v. NLRB, 173 F.3d 233, 239 (4th Cir.

1999) (“The Board’s legal interpretations

of the NLRA are entitled to deference. If

the Board’s interpretations are rational and

consistent with the Act, they will be upheld

by reviewing courts.” (same)).

• St. John’s Mercy Health Sys. v. NLRB,

436 F.3d 843, 846 (8th Cir. 2006) (“The

Board’s construction of the Act is entitled to

considerable deference, and must be upheld

if it is reasonable and consistent with the

policies of the Act.” (same)).

• Four B Corp. v. NLRB, 163 F.3d 1177, 1182

(10th Cir. 1998) (“[F]or the Board to prevail,

it need not show that its construction is the

best way to read the statute; rather, courts

must respect the Board’s judgment so long

as its reading is a reasonable one.” (same;

emphasis original)).

• Shore Club Condo. Ass’n, Inc. v. NLRB, 400

F.3d 1336, 1338 (11th Cir. 2005) (“Because of

the Board’s special competence in the field of

labor relations, its interpretation of the Act

is accorded substantial deference.” (same)).

So until June 28, 2024, when this Court issued its

opinion in Loper Bright, it was settled law that Board

interpretations of the NLRA were entitled to deference.

And critically, this was so not because, as happened

in Chevron, the Court issued a “directive” requiring

such deference. Loper Bright, 144 S. Ct. at 2264. It was

instead because Congress made a “conscious decision” to

“delegate[e]” the “primary responsibility” for interpreting

the Act to the Board. Ford Motor Co., 441 U.S. at 496.

Loper Bright reaffirms that this sort of delegation is

proper—even commonplace. 144 S. Ct. at 2268. More,

nothing in Loper Bright purports to call into question any

of the Court’s prior decisions recognizing such delegations;

indeed, Loper Bright does not even call into question prior

decisions relying on the Chevron framework. 144 S. Ct.

at 2273.

The Sixth Circuit’s decision here obviously and plainly

conflicts with this decades-long run of caselaw. It is simply

incorrect that a reviewing court “do[es] not defer to the

NLRB’s interpretation of the NLRA.” App. 8a. That is

exactly what a reviewing court is to do. This Court has

long held that, “[i]f a precedent of [the Supreme] Court has

direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of

Appeals should follow the case which directly controls. . . .”

Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S.

477, 484 (1989). This case involves a textbook violation

of that rule. There are innumerable cases that “directly

control” here. And while those cases might “appear” to

rest on reasons rejected in Loper Bright, that is true only

on the most superficial understanding of that case.

Because the Sixth Circuit “decided an important

federal question in a way that conflicts with relevant

decisions of this Court,” certiorari is warranted for

this reason alone. S. Ct. R. 10(c). But certiorari is also

warranted on this issue because the Sixth Circuit’s

decision conflicts with cases from other circuits decided

after Loper Bright.

1.2. The Sixth Circuit’s decision conflicts with

decisions of other circuits issued since Loper

Bright.

The Sixth Circuit stands on an island in holding that

Loper Bright eliminated the deference due to the Board’s

NLRA interpretations. Since this Court decided Loper

Bright, several circuits have addressed the appropriate

standard of review in this context, and the Sixth Circuit’s

decision here conflicts with all of them.

To start, in Hudson Institute of Process Research Inc.

v. NLRB, 117 F.4th 692 (5th Cir. Sept. 18, 2024), the Fifth

Circuit addressed the standard of review head on, stating

it would affirm the NLRB’s legal conclusions “if they have

a reasonable basis in the law and are not inconsistent with

the [NLRA].” Id. at 700 (citation omitted). And while the

court cited Loper Bright for the proposition that courts

“do not simply defer to an agency’s interpretation of

‘ambiguous’ provisions of their enabling acts,” it also

recognized that Loper Bright “d[id] not call into question

prior cases that relied on the Chevron framework.”

Id. (quoting Loper Bright, 144 S. Ct. at 2273). Even

more importantly, the court recognized Loper Bright’s

admonition that, “where a statute delegates discretionary

authority to an agency, ‘the role of the reviewing court . . .

is, as always, to independently interpret the statute and

effectuate the will of Congress subject to constitutional

limits.’” Id. (quoting Loper Bright, 144 S. Ct. at 2263

(emphasis added)).

The Second, Seventh, and D.C. Circuits, likewise, have

reaffirmed their deferential standard of review for Board

decisions, all without even referencing Loper Bright. See

NLRB v. Blue Sch., No. 23-6305-AG, 2024 WL 4746378,

at *2 (2d Cir. Nov. 12, 2024) (summary order) (stating

as to “legal conclusions” the court “must give the Board

considerable deference and afford the Board a degree of

legal leeway” (citation omitted)); International Union of

Operating Eng’rs, Loc. 150, AFL-CIO v. NLRB, 109 F.4th

905, 915 (7th Cir. July 23, 2024) (“For legal conclusions,

our scrutiny of the Board’s decision is deferential out of

respect for Congress’s broad delegation of responsibility

for developing national labor policy to the Board.

Therefore, we accept the Board’s legal conclusions unless

they are irrational or inconsistent with the Act.” (cleaned

up)); Acumen Cap. Partners, LLC v. NLRB, 122 F.4th 998,

1003 (D.C. Cir. Dec. 13, 2024) (“[E]ffectuat[ing] national

labor policy is often a difficult and delicate responsibility,

which the Congress committed primarily to the National

Labor Relations Board, subject to limited judicial review.”

(citation omitted)).

And finally, in Alaris Health at Boulevard East v.

NLRB, 123 F.4th 107 (3d Cir. Dec. 9, 2024), the Third

Circuit questioned whether Loper Bright had any effect

at all in this context. There the court explained it had

“traditionally deferred to the Board’s interpretations

of the Act so long as they are ‘reasonable.’” Id. at 120

(citation omitted). While stating that “[w]hether this

deference survives” Loper Bright “is somewhat of an

open question,” the court recognized that “judicial

deference to the Board’s classifications of the ‘terms and

conditions of employment’ under the Act” is apparently

“distinct from Chevron deference, as the Supreme Court’s

decisions developing that deference to the Board predate

Chevron. . . .” Id. at 121. In support of this proposition,

the panel cited this Court’s decision in Ford Motor Co.

Id. “In fact,” the Third Circuit went on, “the Court in

Loper Bright distinguished Chevron deference from prior

cases where it deferred to the Board’s interpretation of

the Act, reasoning ‘the Act had, in the Court’s judgment,

assigned primarily to the Board the task of marking a

definitive limitation around the relevant statutory term’

and so ‘application of the statutory term was sufficiently

intertwined with the agency’s factfinding’ that deference

to the Board’s interpretation was warranted.” Id. (cleaned

up) (quoting Loper Bright, 144 S. Ct. at 2259–60, and

again citing Ford Motor Co.). Although on the right track,

however, the court ultimately concluded it did not need to

decide the issue. Id. at *8.

That “a United States court of appeals has entered

a decision in conflict with the decision of another United

States court of appeals on the same important matter”

provides a strong, independent reason to grant certiorari.

S. Ct. R. 10(a).

1.3. This case provides an ideal vehicle for

confirming that Loper Bright did not disturb

the Court’s decisions mandating that courts

defer to the Board’s interpretations of the

NLRA.

The Sixth Circuit’s rejection of the traditional

standard for reviewing Board interpretations of the Act

is direct, clear, and unmistakable. The court stated point

blank that it would “not defer to the NLRB’s interpretation

of the NLRA,” and instead would “exercise independent

judgment” when deciding such questions. App. 8a. What’s

more, the petitioner here sought rehearing on this issue,

and the court rejected the invitation to correct its mistake.

App. D. Nor can there be any doubt as to the basis for the

court’s pivot away from the traditional standard of review.

The only case the court cited for its novel rule of nondeference was Loper Bright. See App. 8a. And as if there

was any question remaining about what the court was

doing, in a subsequent decision citing its opinion at issue

here, the Sixth Circuit confirmed it now “appl[ies] de novo

review to the NLRB’s interpretation of the NLRA. . . .”

NLRB v. Macomb, No. 23-1335, 2024 WL 4240545, at *3

(6th Cir. Sept. 19, 2024) (per curiam). This makes for a

perfect vehicle to confirm that Ford Motor Co. and related

precedent survive Loper Bright.

The Court should not wait to grant certiorari on

this issue and risk allowing the circuit split to widen.

In the twelve-month period ending on September 30,

2023, petitions for review were filed from NLRB orders

in 188 cases. Table B-3, U.S. Courts of Appeals Judicial

Business (Sept. 30, 2023), https://www.uscourts.gov/

statistics/table/b-3/judicial-business/2023/09/30. Setting

aside cases from the Bureau of Immigration Appeals,

which run into the thousands annually, only EPA decisions

spawned more agency-based federal appellate litigation

(and not by much—just eight more cases). Id. These

numbers are representative of the circuit courts’ annual

administrative caseload. See id. (documenting sources

of appeals back to Sept. 30, 2019). It is beyond question,

then, that courts in many other circuits will soon confront

the very issue addressed by the Sixth Circuit here and

so would immediately benefit from the Court’s guidance.

It goes without citation that getting the standard of

review right is vitally important. The difference between

deferential review and de novo review can be outcome

determinative. Even more, as Loper Bright indicated,

it can often spell the difference between respecting a

conscious delegation of congressional authority and not.

The Court thus has often granted certiorari for the

express purpose of determining the applicable standard

of appellate review. Loper Bright is a prime example,

but there are many others in recent history. See, e.g.,

Monasky v. Taglieri, 589 U.S. 68, 83–84 (2020); U.S. Bank

Nat’l Ass’n ex rel. CW Cap. Asset Mgmt. LLC v. Vill. at

Lakeridge, LLC, 583 U.S. 387, 392–94 (2018); McLane Co.

v. EEOC, 581 U.S. 72, 79–85 (2017).

***

The Court should grant certiorari. And because

the Sixth Circuit’s statement of the governing standard

of review is patently incorrect, the Court may wish to

consider summarily reversing and remanding. See S. Ct.

R. 16.1. This not only would allow the Sixth Circuit to

apply the correct standard, but it would also make clear

to the other circuits that, consistent with the Court’s

decades-long line of caselaw in this area, reviewing courts

must continue to defer to the Board’s interpretations of

the NLRA.

2. The Sixth Circuit’s decision that the NLRB General

Counsel may be removed at will by the President

threatens the long-recognized independence of one

of the oldest independent federal agencies.

Certiorari is also warranted to address “an important

question of federal law that has not been, but should be,

settled by this Court”: does the NLRB General Counsel

enjoy protection from at-will removal by the President?

See S. Ct. R. 10(c). The Court should take this case to

decide that she does, both because of the importance of

the issue to the agency it affects and those it regulates,

but also because this case is an ideal vehicle for doing so.

2.1. Whether the President may remove the

NLRB General Counsel at will is a question

of fundamental importance to the Board’s

independence.

The Board’s quasi-judicial function is, to borrow

a phrase from another removal case, “operationally

incompatible” with at-will presidential removal of its

General Counsel. Severino v. Biden, 71 F.4th 1038, 1047–

48 (D.C. Cir. 2023) (recognizing the President’s removal

authority may be limited if it would be operationally

incompatible with the functions of the relevant agency,

and citing, among other authorities, Humphrey’s Ex’r v.

United States, 295 U.S. 602 (1935), and Wiener v. United

States, 357 U.S. 349 (1958)). Without removal protections,

the Board cannot count on the General Counsel to seek

enforcement of its decisions. This not only undermines

the independence of the Board itself, but it also threatens

to put the General Counsel in an impossible position,

having to choose between honoring her statutory duty to

faithfully seek enforcement of the Board’s decisions and

kowtowing to the wishes of the President who may not

want those Board decisions enforced.

2.1.1. The Board’s independence is inextricably

linked with the General Counsel’s

independence.

Before addressing the discrete removal question

at issue, it is necessary to fully appreciate the General

Counsel’s role within the NLRB, as a matter of both

statute and Board policy.

It is well-established that Congress created the NLRB

as an independent agency, whose members are protected

from at-will removal under Section 3(a) of the Act. Since

the NLRA became law in 1935 with the Wagner Act, and

thereafter when in 1947 it was amended by the Taft-Harley

Act (also called the Labor Management Relations Act), the

Court has repeatedly upheld Congress’s ability to create

“quasi-judicial” agencies with multi-member leadership

beyond the immediate oversight of the President—and the

Court has pointed to the NLRB as just such an agency.

See Collins v. Yellen, 594 U.S. 220, 249 (2021) (noting

“Congress has restricted the President’s removal power”

over the NLRB); Seila Law LLC v. CFPB, 591 U.S. 197,

261 (2020) (Kagan, J., concurring in part and dissenting

in part) (citing the statute establishing the NLRB as a

model for restricting the President’s removal authority

“repeatedly approved” by the Court).

But this power to adjudicate independent of presidential

oversight does not mean the Board’s orders automatically

carry the force of law. They don’t: “The NLRB may be the

only agency that needs a court’s imprimatur to render its

orders enforceable.” Dish Network Corp. v. NLRB, 953

F.3d 370, 375 n.2 (5th Cir. 2020), as revised (collecting

cases). As Judge Posner observed: “To put teeth into one

of its orders the Board must persuade a court of appeals

to enforce the order. . . .” NLRB v. Thill, Inc., 980 F.2d

1137, 1142 (7th Cir. 1992).

This is where the General Counsel comes in. Section

3(d) of the Act grants the General Counsel supervisory

authority over “all attorneys employed by the Board

(other than administrative law judges and legal assistants

to Board members). . . .” 29 U.S.C. §153(d). ALJs are

to be neutral arbiters and the Board’s legal assistants

do not advocate on behalf of the Board in enforcement

proceedings. And hiring attorneys who do not answer

to the General Counsel for the purpose of seeking

enforcement of Board orders isn’t an option. The Board

thus must rely on the General Counsel and those attorneys

under her supervision to seek enforcement of the Board’s

decisions.

The General Counsel in turn takes her enforcement

cues from the Board. Under the Act, “[a]ttorneys

appointed under this section”—that is, the attorneys

under the supervision of the General Counsel—“may,

at the direction of the Board, appear for and represent

the Board in any case in court. . . .” 29 U.S.C. §154(a).

Using that authority, the Board has affirmed for 75

years running that the General Counsel “will” petition

for enforcement of Board orders “in full accordance with

the directions of the Board.” See Notice, NLRB, General

Counsel, Description of Authority & Assignment of

Responsibilities, 15 Fed. Reg. 6924 (Oct. 13, 1950);

accord Notices, Authority & Assigned Responsibilities

of General Counsel of NLRB, 20 Fed. Reg. 2175 (Apr. 1,

1955), most recently reaffirmed in relevant part, 77 Fed.

Reg. 45696 (Aug. 1, 2012). This places no small obligation

on the General Counsel, because the NLRB, “uniquely

among major federal administrative agencies, has chosen

to promulgate virtually all the legal rules in its field

through adjudication rather than rulemaking.” Allentown

Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998).

So by congressional design, the Board must depend in the

first instance on the General Counsel’s faithful advocacy

to give its quasi-judicial rulings the force of law.

In keeping with this statutory division of powers—

with the Board as adjudicator and the General Counsel

as the Board’s advocate—the Court has consistently held

that in enforcement proceedings, the General Counsel

must advocate for the Board’s decisions using the Board’s

own reasoning. For “[t]he integrity of the administrative

process demands no less than that the Board, not its legal

representative, exercise the discretionary judgment which

Congress has entrusted to it.” NLRB v. Food Store Emps.

Union, Loc. 347, 417 U.S. 1, 9 (1974); see also NLRB v.

Yeshiva Univ., 444 U.S. 672, 685 n.22 (1980) (refusing to

“substitute counsel’s post hoc rationale for the reasoning

supplied by the Board itself ”); Beth Israel Hosp., v.

NLRB, 437 U.S. 483, 500–01 (1978) (“[I]t is to the Board

that Congress entrusted the task of ‘applying the Act’s

general prohibitory language in the light of the infinite

combinations of events which might be charged as violative

of its terms. . . .’” (citation omitted)). Put more directly,

the General Counsel must “defend the decisions of the

Board on review, regardless whether the Board adopted

the view [that the General Counsel] expressed as a party

before it.” Chelsea Indus., Inc. v. NLRB, 285 F.3d 1073,

1077 (D.C. Cir. 2002).

Considered together, these statutory provisions and

settled principles of law establish that the independence

of the Board is inextricably bound up with, and dependent

upon, the independence of the General Counsel. If the

Board wants its orders enforced, it must rely on the

General Counsel to seek their enforcement. And if the

General Counsel does not seek enforcement of the Board’s

orders, those orders cannot be given “teeth.”

2.1.2. The Sixth Circuit’s holding that the

General Counsel is subject to at-will

removal by the President is operationally

incompatible with the structure of the

Act and historical practice.

Despite all this, under the Sixth Circuit’s decision,

the President may remove the General Counsel at will.

This threatens the independence of the Board itself in a

very practical way.

Now, if the Sixth Circuit decision stands, in the

event the General Counsel seeks enforcement of Board

decisions with which the President disagrees, the General

Counsel is placed in the position of either honoring her

duty to represent the Board’s position in court in accord

with the Act or deferring to the President in violation

of the Act. If, at the direction of the Board, the General

Counsel chooses to honor her duty to the Board, she risks

being fired by the President. But if, at the direction of the

President, the General Counsel chooses not to honor her

duty to the Board, the Board’s decisions won’t be worth

the paper they’re written on; for the respondent can violate

them “with impunity.” NLRB v. P*I*E Nationwide, Inc.,

894 F.2d 887, 890 (7th Cir. 1990) (Posner, J.). There is no

reason to presume Congress intended to put the General

Counsel in such an impossible position. An individual can

serve two masters only “if the service to one does not

involve abandonment of the service to the other.” NLRB

v. Town & Country Elec., Inc., 516 U.S. 85, 94–95 (1995)

(citation and emphasis omitted)). But that is precisely what

the Sixth Circuit’s decision requires.

It is a cardinal principle of statutory construction that

“interpretations of a statute which would produce absurd

results are to be avoided if alternative interpretations

consistent with the legislative purpose are available.”

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575

(1982). Here, an alternative interpretation is available.

Reading Section 3(d) to impose a for-cause limitation

on the President’s removal authority over the General

Counsel gives force to all of the provisions of the Act,

including those providing for (1) the General Counsel’s

four-year term; (2) the Board’s protections against at-will

presidential removal; (3) the General Counsel’s supervisory

authority over NLRB attorneys; (4) the Board’s authority

to direct NLRB attorneys in enforcement proceedings;

and (5) the General Counsel’s authority over prosecutorial

decisions made before the Board issues a decision (more

on this last provision shortly). This is the only construction

that reads “the statute as a symmetrical and coherent

regulatory scheme,” and fits “all parts into an harmonious

whole.” Food & Drug Admin. v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000) (cleaned up).

This understanding of Section 3(d) also marks out

the extent to which the President does have authority

to remove the General Counsel: namely if she violates

her duty to faithfully pursue enforcement of the Board’s

decisions in federal court. For “[t]he legal principle that

insubordination, disobedience or disloyalty is adequate

cause for discharge is plain enough.” NLRB v. Local

Union No. 1229, Int’l Bhd. Of Elec. Workers, 346 U.S. 464,

475 (1953); accord Collins, 594 U.S. at 256.

Indeed, that is precisely how previous presidents

have apparently viewed their removal authority over the

General Counsel for 75 years. President Truman, for

example, asked the first NLRB General Counsel, Robert

Denham, to resign in 1950 (and he did so voluntarily) due

to Denham’s express refusal to adhere to Board mandates

during enforcement proceedings. As Denham admitted:

“The Board ordered me flatly not to file a brief prepared

under my direction, but to use an earlier draft prepared

by one of my law clerks, which I had seen. It was bad law,

and I refused[.]” See 96 Cong. Rec. App’x A7989-91 (1951),

https://www.govinfo.gov/content/pkg/GPO-CRECB-1950pt18/pdf/GPO-CRECB-1950-pt18-1.pdf (extension of

remarks by Rep. Paul Shafer, with excerpt of Robert N.

Denham, And So I Was Purged, The Saturday Evening

Post (Dec. 30, 1950)).

So even if prior practice indicates the President has

authority to fire the General Counsel, that authority

has only ever been entertained under circumstances

demonstrating “cause” for termination, defined as

disloyalty to the Board’s mandates—not the President’s.

2.1.3. Other interpretive canons do not trump

statutor y structure and historical

practice.

The courts of appeal have thus far found that the

General Counsel enjoys no protection against at-will

removal by the President by relying on various other

canons of statutory interpretation—beyond structure and

history—applying them in rote fashion. In addition to the

Sixth Circuit’s decision here, see NLRB v. Aakash, Inc.,

58 F.4th 1099 (9th Cir. 2023); Exela Enter. Sols., Inc. v.

NLRB, 32 F.4th 436 (5th Cir. 2022). But rote application of

interpretive canons fails to account for the unique position

the General Counsel occupies within the NLRA, as the

exclusive advocate of the Board. In none of the three cases

that have addressed this issue—including in the Sixth

Circuit decision in this case—did the courts grapple with

the structural and historical arguments that petitioner

consistently has pressed in this case.

2.1.3.1. The fact that the Board enjoys

express statutor y removal

protection does not imply the

General Counsel may be fired at

will given the relevant statutes

were enacted separately.

The most common objection to interpreting Section

3(d) of the Act as implying removal protections for the

General Counsel is that, because Section 3(a) of the Act

contains an express limitation on removing members of

the Board, Section 3(d) should be read as intentionally

omitting such protections for the General Counsel. See

App. 11a–12a. But as this Court has cautioned, this

“negative pregnant argument should not be elevated to

the level of interpretive trump card.” Field v. Mans, 516

U.S. 59, 67 (1995).

What these decisions omit is that the relevant removal

language in Section 3(a) was enacted as part of the Wagner

Act in 1935, while Section 3(d) was enacted as part of the

Taft-Hartley Act in 1947. Compare Pub. L. No. 74-198,

§3(a), 49 Stat. 449, 451 (1935), with Pub. L. No. 80-101,

§3(a), 61 Stat. 136, 139 (1947). Given this twelve-year gap,

there is no reason to infer anything from the fact that

Congress did not explicitly extend Section 3(a)’s removal

restrictions as to Board members to the General Counsel

under Section 3(d). Compare Gomez-Perez v. Potter, 553

U.S. 474, 486–87 (2008) (holding the Age Discrimination

in Employment Act’s federal-sector provision did not

impliedly prohibit retaliatory conduct even though the

ADEA’s private-sector provision expressly prohibited

retaliation, where “the two relevant provisions were not

considered or enacted together”), with Collins, 594 U.S.

at 247–48 (holding it could be inferred that the “Acting”

FHFA Director did not have implied removal protections

based on the fact that the FHFA Director was granted

express removal protections, where the relevant statutory

provisions were enacted simultaneously).

More, notably absent from the Taft-Hartley Act’s

legislative history is any indication Section 3(a)’s forcause protections were ever reconsidered before the Act

becoming law. See 1 & 2 N.L.R.B., Legislative History

of the L abor M anagement Relations Act, 1947 (Gov.

Print Off., 1948) (“LMRA History”), https://catalog.

hathitrust.org/Record/000955829. Rather, it appears

Congress simply presumed the General Counsel would

have a protected right to a full four-year term under

Section 3(d), a presumption detractors relied on to drum

up opposition to the bill. See 2 LMRA History at 1559 (6th

Cir. Dkt. No. 22 at ADD003) (statement of Sen. Morse)

(the General Counsel “is to be appointed by the President

for a fixed term of years” (emphasis added))); id. at 1567

(ADD004) (statement of Sen. Murray) (“Any discipline of

this individual is precluded by making him a Presidential

appointee, subject to Senate confirmation, removable only

for clear malfeasance in office.”)). This sentiment was

further echoed in President Truman’s veto of the TaftHartley Act (which Congress overrode), stating “[t]he bill

would establish, in effect, an independent General Counsel

and an independent Board.” See Harry Truman, Veto of

the Taft-Hartley Labor Bill (June 20, 1947) https://www.

trumanlibrary.gov/library/public-papers/120/veto-tafthartley-labor-bill.

2.1.3.2. A statutory term of years may be

read to limit the removal of agency

officials when considering the

structure of the agency as a whole.

The circuit courts have also relied on the general

presumption that a statutory term of years, without

more, does not constitute a removal restriction. See,

e.g., Aakash, 58 F.4th at 1103 (citing Parsons v. United

States, 167 U.S. 324 (1897)). But this too ignores that a

term limit can, with more, restrict removal of certain

officers of an otherwise independent agency. See Wiener,

357 U.S. at 353–56. Indeed, federal courts, in reliance on

this Court’s precedents, have recognized that “Congress

may clearly indicate its intent to restrict removals

through the statutory structure and function of an office.”

Severino, 71 F.4th at 1044; see also FEC v. NRA Pol.

Victory Fund, 6 F.3d 821, 826 (D.C. Cir. 1993) (discussing

commissioners of the Federal Election Commission);

S.E.C. v. Blinder, Robinson & Co., 855 F.2d 677, 681 (10th

Cir. 1988) (discussing commissioners of the Securities and

Exchange Commission); Free Enter. Fund v. Public Co.

Acct. Oversight Bd., 561 U.S. 477, 487 (2010) (accepting

the parties’ agreement that SEC commissioners could not

be removed except for cause).

2.1.3.3. Interpreting the NLRA to prohibit

at-will removal of the General

Counsel does not impede the

President’s Article II responsibility

to faithfully execute the law.

Finally, the Sixth Circuit determined that petitioner’s

proposed interpretation of the Act is unconstitutional

because Section 3(d) vests “final authority, on behalf of

the Board, in respect of the investigation of charges and

issuance of complaints under section 10 [of the Act], and

in respect of the prosecution of such complaints before the

Board. . . .” See App. 11a. But that view ignores that the

analogy between the General Counsel and a traditional

prosecutor is, as this Court has recognized, “far from

perfect.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132,

156 n.22 (1975); accord NLRB v. United Food & Com.

Workers Union, Loc. 23, AFL-CIO, 484 U.S. 112, 126 n.21

(1987) (calling the analogy “of little aid”).

First, the General Counsel does not have authority

to “bring” charges, as the panel below thought. App. 13a.

Rather, “[t]he General Counsel, unlike most prosecutors,

may authorize the filing of a complaint with the Board

only if a private citizen files a ‘charge.’” Sears, 421 U.S.

at 156 n.22.

Second, the General Counsel’s executive authority is

limited to those discrete matters of labor law relevant to

the charges private citizens choose to file. Cf. Seila Law,

591 U.S. at 219 (distinguishing the CFPB Director from

the independent counsel at issue in Morrison v. Olson,

487 U.S. 654 (1988), whose independent executive power

“was trained inward to high-ranking Governmental actors

identified by others”).

Third, the General Counsel is not vested with

statutory discretion to bring matters directly to court;

prosecutions ultimately proceed “before the Board.” 29

U.S.C. §153(d). So, since the Board possesses exclusive

statutory authority over which cases proceed to an Article

III court, the General Counsel’s prosecutorial authority

never truly extends beyond the Board itself.†

On this issue, Seila Law is particularly instructive. The

Court there cited Humphrey’s Executor, 295 U.S. at 632,

for the proposition “that between purely executive officers

on the one hand, and officers that closely resembled the

† The General Counsel seeks judicial relief without Board

approval under Section 10(l) of the Act (see 29 U.S.C. §160(l)),

but doing so is mandatory once the General Counsel finds merit

to certain limited unfair labor practice allegations. Section 10(l)

thus also does not grant the General Counsel true prosecutorial

discretion. See Overstreet v. United Bhd. of Carpenters & Joiners

of Am., Loc. Union No. 1506, 409 F.3d 1199, 1205 (9th Cir. 2005)

(“Board officials must petition for a § 10(l) injunction whenever

it has reasonable cause to believe that specific violations of the

NLRA . . . have occurred.” (cleaned up)).

FTC Commissioners on the other, there existed ‘a field of

doubt’ that the Court left ‘for future consideration.’” Seila

Law, 591 U.S. at 216. In determining where the CFPB

Director fell on that spectrum, Seila Law found, in three

respects, that the Director’s authority was incompatible

with removal protections for a single individual—authority

that, here, is held by the Board, not the General Counsel:

• to “promulgate binding rules f leshing

out [ ] federal statutes,” 591 U.S. at 218;

compare 29 U.S.C. §156 (“The Board shall

have authority from time to time to make,

amend, and rescind . . . such rules and

regulations as may be necessary to carry

out the provisions of this subchapter.”);

• to “unilaterally issue final decisions awarding

legal and equitable relief in administrative

adjudications,” 591 U.S. at 218–19; compare

29 U.S.C. §159 (granting the Board authority

to determine bargaining units and conduct

union elections) and 29 U.S.C. §160(c)

(granting the Board authority to issue

orders remedying unfair labor practices);

and

• to “seek daunting monetary penalties

against private parties on behalf of the

United States in federal court,” 591 U.S. at

219; see 29 U.S.C. § 160(e) (“The Board shall

have power to petition any court of appeals

of the United States” for enforcement of its

orders); id. § 160(j) (“The Board shall have

power . . . to petition any United States

district court” for injunctive relief ).

Seila Law thus supports the constitutionality of

recognizing the General Counsel cannot be removed at

will. The General Counsel’s responsibility to advocate

on behalf of the Board renders the General Counsel

something other than a “purely executive officer,” placing

the position within the “field of doubt” left by Humphrey’s

Executor for future adjudication. And in weighing the

General Counsel’s overall responsibilities, the scale must

tip in favor of recognizing removal protections, because

final decision-making and policy-making authority at the

NLRB is vested exclusively in the Board. The General

Counsel merely makes policy recommendations through

her prosecutions, which the Board is free to accept or

reject. But once the Board renders a decision, the General

Counsel is bound to adhere to it, even if she thinks it is,

in former General Counsel Denham’s words, “bad law.”

Even the Board’s adjudicatory authority is ultimately

limited to “submitting recommended dispositions to an

Article III court,” which Seila Law cited as supporting a

constitutional removal restriction. See 591 U.S. at 218–19.

Accordingly, recognizing implied removal protections

for the General Counsel does not impede the President’s

Article II powers any more than the Board’s express

removal protections do. As such, the fixed four-year term

for the General Counsel in Section 3(d) of the Act can and

should be interpreted to prevent at-will removal by the

President, so as to effectuate Congress’s intent that the

Board operate as an independent agency.

2.2. This case presents an ideal vehicle for deciding

whether the President may remove the General

Counsel at will.

This case presents the removal question cleanly

and squarely, as the Board has never disputed that its

complaint against Rieth-Riley would be invalid if General

Counsel Robb were improperly removed from office. See

SW Gen., Inc. v. NLRB, 796 F.3d 67, 79–81 (D.C. Cir. 2015),

aff ’d, 580 U.S. 288 (2017) (recognizing private parties are

entitled to challenge actions by individuals purporting to

wield the General Counsel’s power on the grounds they

lack such authority). The issue was pressed below, fully

briefed by the parties, and discussed extensively by the

court of appeals with the additional benefit of on-point

decisions from the Fifth and Ninth Circuits.

And although there is no circuit conflict on this issue,

the Court has consistently recognized the importance

of addressing separation-of-powers issues even in the

absence of a circuit conflict—particularly where, as

here, the President’s removal authority is at issue. In

Free Enterprise Fund v. Public Company Accounting

Oversight Board, 561 U.S. 477 (2010), for example, the

D.C. Circuit addressed the removal protections for the

PCAOB as a matter first impression, and still the Court

granted certiorari. Similarly, in Collins v. Yellen, 594

U.S. 220 (2021), the Fifth Circuit concluded that removal

restrictions for the director of the Federal Housing

Finance Agency were unconstitutional, also as a matter

of first impression, and the Court granted certiorari. And

in Seila Law LLC v. CFPB, 591 U.S. 197 (2020), both the

D.C. and Ninth Circuits upheld removal protections for the

CFPB Director and no circuit had ruled otherwise—and

still, once more, the Court granted certiorari.

In sum, this case neatly presents an issue regarding

the scope of presidential removal powers of foundational

importance to the independence of the NLRB, and it

does so directly, after consideration by three different

appellate courts.

CONCLUSION

The Court should grant certiorari on both the

standard-of-review issue and the removal issue, and set

the case for merits briefing and argument. At minimum,

the Court should grant certiorari and summarily reverse

on the standard-of-review issue.

Respectfully submitted,

Brian J. Paul

Counsel of Record

Stuart R. Buttrick

Ryan J. Funk

A lexander E. Preller

Faegre Drinker Biddle

& Reath LLP

300 North Meridian Street,

Suite 2500

Indianapolis, IN 46204

(317) 237-0300

brian.paul@faegredrinker.com

Counsel for Petitioner

Rieth-Riley

Construction Co., Inc.

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED AUGUST 14, 2024 . . . . . . 1a

APPENDIX B — JUDGMENT OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED AUGUST 14, 2024 . . . 27a

A PPEN DI X C — DECISIONS OF T HE

NATIONAL LABOR RELATIONS BOARD,

FILED DECEMBER 15, 2023 . . . . . . . . . . . . . . . . 29a

APPENDIX D — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

A PPEALS FOR THE SIXTH CIRCUIT,

FILED OCTOBER 23, 2024 . . . . . . . . . . . . . . . . . 122a

APPENDIX E — ORDER STAYING MANDATE

OF THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT, FILED

DECEMBER 20, 2024 . . . . . . . . . . . . . . . . . . . . . . . 124a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT,

FILED AUGUST 14, 2024

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 23-1899/1946

RIETH-RILEY CONSTRUCTION CO., INC.,

Petitioner/Cross-Respondent,

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross-Petitioner.

On Petition for Review and Cross-Application for

Enforcement of an Order of the National Labor

Relations Board.

Nos. 07-CA-261954; 07-CA-269365; 07-CB-247398.

Argued: July 25, 2024

Decided and Filed: August 14, 2024

Before: MOORE, COLE, and MATHIS, Circuit Judges.

OPINION

COLE, Circuit Judge. This action concerns an unfair

labor practice dispute between Rieth-Riley Construction

Co., a highway construction contractor in Michigan, and

Appendix A

Local 324, International Union of Operating Engineers,

AFL-CIO (the Union), which represents employees at

road construction contractors, regarding subcontracting

and employee wages. This matter comes before us on

Rieth-Riley’s Petition for Review and the Board’s CrossApplication for Enforcement of a Final Order of the Board.

We enforce the NLRB’s decision and order, hold that the

President can remove the NLRB General Counsel at

will, and hold that the General Counsel had unreviewable

prosecutorial discretion to fashion complaints on behalf

of the parties.

Rieth-Riley is an asphalt paving and heavy road

construction contractor in Michigan. The Union represents

more than 14,000 employees of road construction

contractors in Michigan, including Rieth-Riley. The

last collective-bargaining agreement between RiethRiley and the Union expired on May 31, 2018 (the Road

Agreement). Negotiations began in November 2018, but

despite participating in 10 bargaining sessions between

then and September 2019, the parties have not yet reached

a successor agreement.

The two main issues remaining after the parties’

negotiations are subcontracting and wages. On July

8, 2019, the Union proposed requiring Rieth-Riley to

subcontract only with subcontractors who comply with the

terms of the prior Road Agreement. Rieth-Riley counter-

Appendix A

proposed on July 29, stating that it would agree to the

Union’s restrictions if they were limited to seven counties.

The Union rejected the counter-proposal because it had a

successor contract with the Michigan Union Contractors

Group (MUCG) that contained a “most-favored-nations”

clause, under which any agreement with Rieth-Riley to

limit the subcontracting restriction to certain counties

would impact the Union’s other subcontracting agreements

throughout the state.

During one of the negotiating sessions, Doug

Stockwell, the Union’s business manager, told Keith

Rose, Rieth-Riley’s President and CEO, that the Union

“might as well die on the vine” if it did not get “its desired

subcontracting language” and that he was “willing to burn

the house down over subcontracting.” (ALJ Op., PageID

2143.) On July 31, 2019, while contract negotiations were

ongoing, the Union went on strike against Rieth-Riley. The

Union then set up picket lines at 13 Rieth-Riley facilities

in Michigan.

Relevant here, on August 13, 2019, at the Rieth-Riley

Lansing facility, truckdrivers Karl Grinstern and Chad

Feibig were driving out of the facility at three to four miles

per hour when the truck hit the left side of the body of

Michael Feighner, a striking union member picketing on

the driveway. Feighner then yelled at Grinstern, jabbed

Grinstern’s arm with a picket sign several times, opened

the truck door, took the keys out of the ignition, and spit in

Grinstern’s face. Union representative Robert Heurtebise

stepped between the men and suggested Feighner leave

for the day. Feighner was not disciplined and was paid by

Appendix A

the Union for picketing. On August 29, 2019, Rieth-Riley

filed an unfair labor practice charge against the Union

regarding the Feighner and Grinstern incident as well

as other alleged picket line misconduct.

On June 1, 2020, the Union requested the following

subcontractor-related information:

For the last four years, provide any and all

documents that indicate the percentage of

work covered by the expired 2013-2018 MITA/

IUOE 324 Road Agreement that has been

subcontracted.

(Id. at PageID 2143.) The Union explained that the

information was relevant to its bargaining responsibility

and that whether “Rieth-Riley sub-contracts one to ten

percent of its work versus . . . 50 percent or more would

have a large impact” on its counter-proposals. (Id. at 2144.)

On June 16, 2020, Rieth-Riley responded, stating: (1)

this was the third iteration of the same request; (2) the

information requested was not relevant to negotiations,

was confidential, and akin to a trade secret; (3) the

request was just pretense for the Union to bring an

unfair labor practice charge; and (4) the Union would use

the information to harass the subcontractors. On June

18, 2020, the Union filed an unfair labor practice charge

against Rieth-Riley for its refusal to provide the requested

subcontracting information.

On November 3, 2020, the Union sent a second request,

about bargaining unit employees:

Appendix A

From June 1, 2020, to the present, provide the

compensation, both wages and fringe benefits,

for all employees (including their names and

classifications) doing work covered by the work

jurisdiction provisions of the expired 20132018 MITA/IUOE 324 Road Agreement. This

information demand includes, but is not limited

to, all employees on whose behalf Rieth-Riley

has ever previously paid employee benefit

contributions to the Operating Engineers Local

324 Fringe Benefit Funds.

(Id. at PageID 2146.) On November 12, 2020, Rieth-Riley

responded, stating that: (1) the term “work jurisdiction

provisions” was vague; (2) the Union requested this

information to harass Rieth-Riley employees; and (3)

no bargaining sessions had occurred for a year. (Id.

at PageID 2147.) Rieth-Riley proposed a definition for

“work jurisdiction provisions” based on Article I of the

preexisting Road Agreement and requested confirmation

from the Union.

On November 16, 2020, the Union confirmed that the

Road Agreement provision cited by Rieth-Riley defined

“work jurisdiction provisions” but “not by limitation.”

(Id.) Rieth-Riley responded on November 20, stating it

understood the Union’s response to reject the proposed

definition of “work jurisdiction provisions” without

offering an alternative definition, and requested the term

be defined with specificity. On November 23, 2020, the

Union filed an unfair labor practice charge against RiethRiley for failure to provide the bargaining unit employee

information.

Appendix A

On July 30, 2020, the General Counsel of the NLRB

issued a complaint on behalf of Rieth-Riley containing

10 allegations against the Union for alleged picketing

misconduct in violation of Section 8(b)(1)(A) of the NLRA.

On September 24, 2020, the General Counsel issued a

complaint on behalf of the Union against Rieth-Riley

for failure to produce the requested subcontracting

percentage information. On February 5, 2021, the General

Counsel issued a second complaint on behalf of the Union

against Rieth-Riley for failure to produce the November

2020 requested bargaining unit employee information. All

three cases were consolidated for hearing. On March 3,

2021, the General Counsel withdrew nine of the picketing

misconduct allegations against the Union, leaving only the

incident between Feighner and Grinstern.

At the hearing, in addition to testimony about the

incident between Grinstern and Feighner, Rieth-Riley

presented evidence of other picket line misconduct, which

the ALJ allowed for the limited purpose of arguing as

a defense that Rieth-Riley had reasonable fear that the

Union would use the information requested improperly.

Rieth-Riley alleged that the picketers engaged in

misconduct at 10 facilities, including picketers: blocking

the vision of drivers with their picket signs and stopping

vehicles attempting to exit the facilities, throwing “fart

bombs” into the vehicles of non-picketing employees,

breaking the windshields of Rieth-Riley vehicles and

machinery, making contact with trucks trying to leave

the facility, shouting at non-striking employee drivers,

Appendix A

and using their own vehicles to block the entrances and

exits to certain facilities.

On July 18, 2022, the ALJ issued a decision concluding

that Rieth-Riley’s refusals to provide information were

not justified and violated NLRA Section 8(a)(1) and

(5), and that the Union violated Section 8(b)(1)(A) when

Feighner struck Grinstern with a picket sign and spit in

his face. Because it was not alleged in the complaint, the

ALJ declined to make a finding as to whether Feighner’s

spitting on Feibig, the other truckdriver in the vehicle with

Grinstern, was a violation of Section 8(b)(1)(A). The ALJ

ordered: (1) Rieth-Riley to provide the subcontracting and

employee information to the Union; and (2) the Union to

cease and desist from physically assaulting individuals

by hitting or spitting on them, and from restraining or

coercing employees in their exercise of their NLRA rights.

On September 28, 2023, the Board affirmed the

ALJ’s Decision and adopted the ALJ’s Order with a slight

modification requiring the subcontracting information be

limited to documents indicating the overall percentage

of subcontracting. Rieth-Riley now petitions this court,

requesting review of the Board’s Order and that we

remand the matter for further proceedings. The NLRB

cross petitions for enforcement of its order.

II.

This court defers to the “Board’s findings of fact,

reasonable inferences from the facts, and applications

of law to the facts if they are supported by substantial

Appendix A

evidence on the record considered as a whole.” Hendrickson

USA, LLC. v. NLRB, 932 F.3d 465, 469 (6th Cir. 2019).

Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103, 139 S.

Ct. 1148, 203 L. Ed. 2d 504 (2019) (quoting Consol. Edison

Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed.

126 (1938)).

We do not defer to the NLRB’s interpretation of the

NLRA, but exercise independent judgment in deciding

whether an agency acted within its statutory authority.

Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2262,

219 L. Ed. 2d 832 (2024). We pay “careful attention” to the

judgment of the agency to inform that inquiry, id. at 2273,

and we also review de novo the NLRB’s interpretation

of non-NLRA legal conclusions, Painting Co. v. NLRB,

298 F.3d 492, 499 (6th Cir. 2002). Finally, the Board has

“broad discretion in fashioning remedies for [NLRA]

violations.” NLRB v. ADT Sec. Servs., Inc., 689 F.3d 628,

635 (6th Cir. 2012). We review remedial orders for abuse

of discretion. Compuware Corp. v. NLRB, 134 F.3d 1285,

1291 (6th Cir. 1998).

III.

In January 2021, President Joseph R. Biden removed

the NLRB’s then General Counsel, Peter Robb, who had 10

months remaining on his four-year term. President Biden

named Peter Ohr as the Acting General Counsel, after

Appendix A

which Ohr issued the unfair-labor practice complaints

against Rieth-Riley. Rieth-Riley argued that President

Biden’s removal of then-General Counsel Robb was invalid,

rendering the unfair labor practice complaints against it

invalid. The Board concluded there was no legal basis for

a challenge to the President’s removal authority over the

General Counsel. (Board Decision & Ord. at PageID 2476

n.1 (citing Aakash Inc. d/b/a Park Cent. Care & Rehab.

Ctr., 371 NLRB No. 46, slip op. at 1 (2021) enfd. NLRB v.

Aakash, Inc., 58 F.4th 1099, 1103-05 (9th Cir 2023)).

The Constitution gives the President authority “to

remove those who assist him in carrying out his duties.”

Free Enter. Fund v. Public Co. Acct. Oversight Bd., 561

U.S. 477, 513-14, 130 S. Ct. 3138, 177 L. Ed. 2d 706 (2010).

The President’s removal power of an executive officer is

generally plenary. Seila L. LLC v. Consumer Fin. Prot.

Bureau, 591 U.S. 197, 214-15, 140 S. Ct. 2183, 207 L. Ed. 2d

494 (2020). The Supreme Court recognizes two exceptions

to the President’s plenary removal power, neither of which

are applicable here.

First, Congress can impose removal restrictions on

a multi-member body of experts with staggered terms

that is politically balanced, does not exercise executive

power, and performs quasi-legislative and quasi-judicial

functions. Id. at 216-17; Humphrey’s Executor v. United

States, 295 U.S. 602, 624, 628, 55 S. Ct. 869, 79 L. Ed. 1611

(1935) (upholding removal protections for commissioners

of the Federal Trade Commission because they had no

executive power and it was an administrative body that

performed specified legislative or judicial duties); Wiener

10a

Appendix A

v. United States, 357 U.S. 349, 356, 78 S. Ct. 1275, 2 L.

Ed. 2d 1377, 142 Ct. Cl. 932 (1958) (upholding removal

protections for members of the War Claims Commission—

an independent, three-member body that adjudicated

WWII injury claims).

Second, Congress can compel for-cause removal

protections for inferior officers who have limited duties

and no policymaking or administrative authority that

could “impede the President’s ability to perform his

constitutional duty.” Morrison v. Olson, 487 U.S. 654,

691, 108 S. Ct. 2597, 101 L. Ed. 2d 569 (1988) (upholding

removal protections for an independent counsel appointed

to investigate and prosecute crimes by high-ranking

Government officials); see also United States v. Perkins,

116 U.S. 483, 485, 6 S. Ct. 449, 29 L. Ed. 700, 21 Ct. Cl.

499 (1886) (upholding tenure protections for a naval cadetengineer).

Neither exception applies because the General

Counsel is a singular officer that exercises extensive

executive functions. The General Counsel has final

authority to: (1) supervise all NLRB attorneys (other

than ALJs and legal assistants to Board members); and

(2) investigate charges, issue complaints, and prosecute

unfair labor practices. 29 U.S.C. § 153(d); see also Seila

L. LLC, 591 U.S. at 218-19 (declining to extend removal

protections to CFPB director because the director was

not merely a legislative or judicial aid, but administered

19 consumer-protection statutes, promulgated rules,

issued “final decisions awarding legal and equitable relief

in administrative adjudications,” and was empowered to

11a

Appendix A

“seek daunting monetary penalties against private parties

on behalf of the [U.S.] in federal court”); and Collins

v. Yellen, 594 U.S. 220, 250-51, 141 S. Ct. 1761, 210 L.

Ed. 2d 432 (2021) (holding as unconstitutional statutory

restrictions on President’s removal authority of director

of FHFA).

Further, the “words, structure, and history of the

. . . NLRA clearly reveal that Congress intended to

differentiate between the General Counsel’s and the

Board’s ‘final authority’ along a prosecutorial versus

adjudicatory line.” NLRB v. United Food & Commercial

Workers Union, Local 23 (UFCW), 484 U.S. 112, 124,

108 S. Ct. 413, 98 L. Ed. 2d 429 (1987) (quoting 29 U.S.C.

§ 153(d)). In response to complaints of bias and lack of

uniformity in enforcement, the 1947 Taft-Hartley Act

amendment to the NLRA created the General Counsel’s

office to separate the Board from the prosecutorial

functions of the office. Jackman v. NLRB, 784 F.2d

759, 763 (6th Cir. 1986); see also UFCW, 484 U.S. at 129

(explaining that the “on behalf of the Board” language in

29 U.S.C. § 153(d) was added “to make it clear that the

General Counsel acted within the agency, not to imply that

the acts of the General Counsel would be considered acts

of the Board”). The decision to initiate or dismiss charges

is an executive, not judicial, constitutional duty. United

States v. Bell, 37 F.4th 1190, 1195-96 (6th Cir. 2022).

The text of the NLRA also supports this conclusion.

“When a statute does not limit the President’s power to

remove an agency head, [courts] generally presume that

the officer serves at the President’s pleasure.” Collins,

12a

Appendix A

594 U.S. at 248. Section 3(d) provides that the Board’s

General Counsel “shall be appointed by the President,

by and with the advice and consent of the Senate, for a

term of four years.” 29 U.S.C. § 153(d). It contains no

provision restricting the President’s removal power, unlike

Section 3(a), which expressly states: “[a]ny member of the

Board may be removed by the President, upon notice and

hearing, for neglect of duty or malfeasance in office, but

for no other cause.” 29 U.S.C. § 153(a) (emphasis added).

“[W]hen Congress includes particular language in one

section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.” Collins, 594 U.S. at 248 (quoting Barnhart v.

Sigmon Coal Co., 534 U.S. 438, 452, 122 S. Ct. 941, 151

L. Ed. 2d 908 (2002)). Further, the General Counsel’s

fixed, four-year term does not implicitly provide removal

protections. The Supreme Court has long held that a fixed

term of office, without any additional limitation, does

not impact the President’s discretionary removal power.

Parsons v. United States, 167 U.S. 324, 338-39, 17 S. Ct.

880, 42 L. Ed. 185, 32 Ct. Cl. 626 (1897).

Rieth-Riley differentiates between the General

Counsel’s prosecutorial function in front of the Board and

his responsibility to the Board to petition courts of appeals

for enforcement of Board decisions through litigation.

See 29 U.S.C. § 160(e) (“The Board shall have power to

petition any court of appeals of the United States . . .

for the enforcement” of its decisions and orders). RiethRiley argues that the NLRB must rely on the General

Counsel to effectuate its decisions by seeking enforcement,

13a

Appendix A

because the Board’s independence is tied to the that of

the General Counsel. Without removal protections, RiethRiley maintains that the General Counsel can undermine

the Board’s actions and be put in the impossible position

of serving “two masters” with “conflicting agendas,” i.e.,

the President and the Board. (Pet’r’s Br. 59.)

First, it is the General Counsel’s prosecutorial function

in front of the Board—an authority built into the statutory

framework to which no party objects—that provides the

General Counsel with influence over the issues that the

Board may ultimately petition federal courts to review.

The General Counsel has final authority to issue, and

withdraw, complaints. 29 U.S.C. § 153(d). Thanks to that

prosecutorial authority, the General Counsel determines

what charges the Board will hear and thus what issues

the Board will have an opportunity to decide and seek

enforcement of. The authority to initiate or dismiss

complaints is a purely executive, not judicial, function, Bell,

37 F.4th at 1195-96; it is squarely on the prosecutorial side

of the “prosecutorial versus adjudicatory line,” UFCW,

484 U.S. at 124. Stated otherwise, it is prosecutorial,

i.e., executive authority to bring and drop charges that

empowers the General Counsel; the President properly

has removal authority over officers with such executive

function. See Collins, 594 U.S. at 250-52. The General

Counsel’s purely executive function, moreover, is

detached from the Board’s adjudicatory function and thus

untethered from the Board’s independence.

Second, removal protections would serve only to

insulate the General Counsel’s office from accountability

14a

Appendix A

by removing the President’s at-will removal power, which

is currently the main check on the General Counsel’s

actions. See id. at 252. As explained above, the General

Counsel’s and the Board’s authority are separated “along

a prosecutorial versus adjudicatory line.” UFCW, 484 U.S.

at 124. Removal protections for the General Counsel thus

would not provide the Board with more control over the

office than it already has.

In sum, President Biden lawfully removed former

General Counsel Robb, and the prosecution brought by

then-Acting General Counsel Ohr against Rieth-Riley was

proper. See Aakash, Inc., 58 F.4th at 1104-06 (holding the

President has at-will removal power over NLRB General

Counsel); Exela Enter. Sols., Inc. v. NLRB, 32 F.4th 436,

443-45 (5th Cir. 2022) (same).

“Section 7 of the NLRA guarantees employees

the right ‘to self-organization, to form, join, or assist

labor organizations, to bargain collectively through

representatives of their own choosing,’ and the right to

refrain from those activities.” Hendrickson USA, LLC.,

932 F.3d at 470 (quoting 29 U.S.C. § 157). Section 8 makes

it an unfair labor practice for an employer “to interfere

with, restrain, or coerce employees in the exercise of the

rights guaranteed in [Section 7],” including refusing to

bargain collectively in good faith with the representatives

of an employer’s employees. 29 U.S.C. § 158(a)(1), (a)(5).

An employer’s duty to bargain collectively includes

providing, on request, “relevant information needed by

a labor union for the proper performance of its duties

15a

Appendix A

as the employees’ bargaining representative.” Detroit

Edison Co. v. NLRB, 440 U.S. 301, 303, 99 S. Ct. 1123,

59 L. Ed. 2d 333 (1979). “Good faith bargaining requires

full disclosure by the parties of relevant information in

order to produce informed, effective negotiations.” NLRB

v. Goodyear Aerospace Corp., 497 F.2d 747, 751 (6th Cir.

1974) (quotations and citation omitted). “The duty to supply

information under § 8(a)(5) turns upon ‘the circumstances

of the particular case.’” Detroit Edison Co., 440 U.S. at

314 (quoting NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153,

76 S. Ct. 753, 100 L. Ed. 1027 (1956)).

We apply a liberal “discovery type standard,” which

requires only that the requested information be relevant

to the union in its negotiations and helpful in carrying

out its responsibilities. Gen. Motors Corp. v. NLRB, 700

F.2d 1083, 1088 (6th Cir. 1983). “Relevance is broadly

construed, and in the absence of a countervailing interest,

any requested information that has a bearing on the

bargaining process must be disclosed.” U.S. Testing Co.

v. NLRB, 160 F.3d 14, 19, 333 U.S. App. D.C. 84 (D.C. Cir.

1998) (citation omitted).

Bargaining Unit Employee Information. The NLRA

“creates a duty to bargain collectively ‘with respect

to wages, hours, and other terms and conditions of

employment.’” Gen. Motors Corp., 700 F.2d at 1088 (quoting

29 U.S.C. § 158(d)). Bargaining unit employees’ wages,

hours, and conditions of employment are “presumptively

relevant to bargaining issues” and an “employer has a

duty to provide such information on request.” Goodyear

Aerospace Corp., 497 F.2d at 751 (citation omitted).

16a

Appendix A

The bargaining unit employee information that

the Union requested is relevant in two ways. First, it

is presumptively relevant on its face as wage-related

information. Second, it is specifically relevant to the

parties’ negotiations, because wages are an outstanding

issue. Substantial evidence supports the finding that

Rieth-Riley should have understood why the Union

requested this information and that it was obligated to

provide the Union with this “readily available relevant

information.” ASARCO, Inc., Tenn. Mines Div. v. NLRB,

805 F.2d 194, 198 (6th Cir. 1986).

Rieth-Riley’s allegations of bad faith do not alleviate

its burden, as the “good faith” disclosure requirement is

met if “at least one reason for the demand can be justified.”

Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1192,

343 U.S. App. D.C. 336 (D.C. Cir. 2000) (citing Island Creek

Coal Co., 292 NLRB 480, 489 (1989)). The Union’s demand

was justified by its role as the employee’s bargaining

representative. The requested names, compensation, and

classification information was presumptively relevant, and

the Union was not required to provide further justification.

Rieth-Riley argues, however, that it was unable to

comply because the Union’s information request was

ambiguous. This argument is without merit. In Keauhou

Beach Hotel, the Board established the standard that

“an employer may not simply refuse to comply with an

ambiguous and/or overbroad information request, but

must request clarification and/or comply with the request

to the extent it encompasses necessary and relevant

information.” 298 NLRB 702, 702 (1990) (emphasis added).

17a

Appendix A

Rieth-Riley contends that the Board modified this same

standard four years later by eliminating the conjunctive

“and/or,” and instead adopting the disjunctive “or”;

specifically, in Pacific Physicians Servs., Inc., the Board

explained that “[i]t is well established that an employer

may not simply refuse to comply with an ambiguous

or overbroad information request, but must request

clarification or comply with the request to the extent

it encompasses necessary and relevant information.”

315 NLRB 108, 108 (1994) (emphasis added). Given this

language, in Rieth-Riley’s view, it met its obligation by

requesting clarification, and it was not required to act

further when the Union allegedly failed to clarify the

definition of part of its request.

It is true that the Board has inconsistently applied

this standard. Indeed, more recent decisions addressing

information request disputes apply both the “and/or”

standard established in Keauhou Beach Hotel and the

“or” disjunctive standard. See e.g., Starbucks Corp. &

Workers United, a/w Serv. Emps. Int’l Union, 373 NLRB

No. 48, 2024 WL 1961075, *2 (May 2, 2024) (applying “and/

or” standard); Superior Protection Inc., 341 NLRB 267,

269 (2004) (applying “or” standard). Which standard is

applicable, however, is irrelevant because negotiations did

not end after Rieth-Riley sought clarification.

There is substantial evidence that the Union

appropriately clarified that “work jurisdiction provisions”

was defined, at a minimum, by Article I of the Road

Agreement. At that point, Rieth-Riley was obligated to

move onto step two and provide the presumptively relevant

18a

Appendix A

employee information the Union indicated it needed to

make wage proposals.1 See Hilton Hotel Employer LLC,

372 NLRB No. 61, at *5 (Feb. 28, 2023) (concluding the

hotel employer had conducted “semantic gamesmanship”

when it refused to provide the union with the requested

information, even after the union clarified because the

totality of the circumstances showed that the union

sought guest feedback information). Further, RiethRiley’s position acts against the purpose of Section 8(a)

(5), which encourages good faith bargaining and sharing

of information. Goodyear Aerospace Corp., 497 F.2d at 751.

In conclusion, there is substantial evidence that the

bargaining unit employee information was presumptively

relevant and was going to be used by the Union to draft

a wage proposal. Once the Union clarified that Article

I of the Road Agreement provided the basic definition

for “work jurisdiction provisions,” Rieth-Riley was, at

1. While the strike was ongoing, there were two petitions

filed for an election to decertify the Union as the bargaining

representative of Rieth-Riley’s operating engineers in Michigan.

Both were dismissed by the General Counsel. In response to the

second petition, Rieth-Riley provided the Union with a voter list

containing the full names, work locations, shifts, job classifications,

contact information, and job category of all eligible voters (i.e.,

whether the employee had returned to work from striking, was a

striker, or was a replacement worker). That the Union already had

access to most of the bargaining unit employee information from

a prior decertification petition does not discharge Rieth-Riley’s

obligation. ASARCO, Inc., 805 F.2d at 198 (explaining that “the

availability of the requested information from another source does

not alter the employer’s duty to provide readily available relevant

information” to the union).

19a

Appendix A

minimum, obligated to provide the presumptively relevant

information to the Union within the boundaries of that

definition.

Subcontracting Percentage Information. Where the

information requested concerns non-unit employees, like

requests for subcontracting information, the Union must

establish relevancy. E.I. DuPont de Nemours & Co. v.

NLRB, 744 F.2d 536, 538 (6th Cir. 1984) (per curiam).

Because subcontracting was at issue in the negotiations,

information about subcontracting is relevant to the Union’s

ability to fulfill its duties as the collective-bargaining

representative for union employees. Cf. Elec. Workers

Loc. 58 Pension Tr. Fund v. Gary’s Elec. Serv. Co., 227

F.3d 646, 654 (6th Cir. 2000) (explaining that a union’s

request for information about enforcement of an existing

agreement with an employer was relevant to the union’s

ability to fulfill its duties); Crozer-Chester Med. Ctr v.

NLRB, 976 F.3d 276, 285-86 (3d Cir. 2020) (finding that

information in an employer’s asset purchase agreement for

sale of employer’s health care network contained relevant

information regarding availability of work, potential for

layoffs and hiring, and whether non-unit employees were

receiving pay and benefits the union may want to negotiate

for union employees). Not only was the information

directly relevant to the Union’s potential subcontracting

counterproposals, but the Union explained that a smaller

percentage of subcontracting would have less impact on

its subcontracting proposal than a larger percentage.

Rieth-Riley argues that negotiations were at an

impasse because the parties had rejected each other’s

20a

Appendix A

proposals and had not held a negotiating session since

September 2019. But “a true impasse” exists “after

good-faith negotiations have exhausted the prospects of

concluding an agreement.” Taylor v. ADT, LLC, No. 226116, 2023 U.S. App. LEXIS 27043, 2023 WL 6601885, at

*4 (6th Cir. Oct. 10, 2023) (quoting United Paperworkers

Int’l Union v. NLRB, 981 F.2d 861, 866 (6th Cir. 1992)

(per curiam)). And here, the record evidence does not

“conclusively point[] to an exhaustion of good faith

negotiations.” 2023 U.S. App. LEXIS 27043, [WL] at *5.

That there had been 10 negotiating sessions without an

agreement is not conclusive as to whether negotiations

had stalled. NLRB v. Newcor Bay City Div. of Newcor,

Inc., 219 F. App’x 390, 396 (6th Cir. 2007) (finding no

impasse where seven bargaining sessions had occurred,

and the union was developing a proposal to meet employer

concerns).

In fact , the Union’s request for in for mation

demonstrated its continuing efforts to develop a

subcontracting proposal. See Kreisberg v. HealthBridge

Mgmt., LLC, 732 F.3d 131, 142 (2d Cir. 2013) (finding no

impasse where “the Union was signaling a willingness to

make concessions” or “compromise”). Further, the Union

indicated in its letter that subcontracting would be much

less of an issue if it comprised only 10% of Rieth-Riley’s

work. This demonstrates that the Union thought an

agreement was potentially reachable—not that the parties

were deadlocked. This is also evidence that the Union had

potentially departed from its position that the Union would

“die on the vine” when it came to subcontracting. Finally,

even if we assumed the parties were at a negotiation

21a

Appendix A

impasse, Rieth-Riley’s failure to provide the information

would not help to break the impasse; in fact, it would

prolong it. That behavior should not be rewarded. Given

the above, substantial evidence supported the ALJ’s

conclusion that the negotiations were on hiatus, not at an

impasse.

Rieth-Riley also argues that the subcontracting

information is confidential. A union’s interest in relevant

information must accommodate privacy concerns. Detroit

Edison Co., 440 U.S. at 318-20 (holding that a union’s

request for employee aptitude tests was relevant to its

claim, but employer’s interest in preserving confidentiality

was also legitimate, and disclosing the information only

upon the employee’s written consent was a reasonable

accommodation). Employers, however, must propose a

way to release the information that accommodates its

concerns, such as placing restrictions on the use of the

information while still meeting its bargaining obligations.

See, e.g., E. Tenn. Baptist Hosp. v. NLRB, 6 F.3d 1139, 1144

(6th Cir. 1993) (reversing Board decision where hospital

employer offered reasonable alternatives to union request

for wage and attendance information that protected the

confidentiality of non-union employees). The onus is placed

on the employer because it can propose “how best [to]

respond to a union[‘s] [information] request.” U.S. Testing

Co., 160 F.3d at 21.

As the ALJ explained, redacting the subcontractors’

names and addresses was one way to address RiethRiley’s concerns, but Rieth-Riley never proposed that as

a reasonable accommodation. Nor did it ask the Union to

22a

Appendix A

keep the information confidential. Therefore, substantial

evidence supports the conclusion the Rieth-Riley failed

to meet its burden in asserting this defense and that the

NLRA compelled disclosure of this information.

The original complaint issued on behalf of Rieth-Riley

against the Union by the General Counsel on July 30, 2020,

alleged 10 instances of picket line misconduct, pursuant

to Section 8(b)(1)(A) of the NLRA. On March 3, 2021, the

General Counsel withdrew nine of the allegations, leaving

only the allegations concerning the incident between

Feighner and Grinstern. Then-Acting General Counsel

Ohr denied Rieth-Riley’s appeal of the withdrawal of the

misconduct allegations. 2

The Board affirmed the ALJ’s conclusion that

Feighner’s assault on Grinstern was an unfair labor

practice because a union may not restrain or coerce

2. On May 14, 2021, Rieth-Riley filed a complaint for declaratory

judgment in the United States District Court for the Western District

of Michigan, alleging the withdrawal of the nine allegations was

invalid because: (1) it violated the Board’s rules on appeals to the

General Counsel; and (2) Ohr was not a valid Acting General Counsel

because General Counsel Robb’s firing was unlawful. On June 21,

2024, the district court granted the General Counsel’s motion to

dismiss the complaint, finding it lacked subject-matter jurisdiction

because the General Counsel’s decision to withdraw portions of the

complaint “unquestionably constitute[d] an exercise of prosecutorial

discretion that Congress shielded from judicial review.” Rieth-Riley

Construction Co. v. Kerwin et al., R. 26, No. 1:21-cv-407, 2024 U.S.

Dist. LEXIS 109663, *15 (W.D. Mich. June 21, 2024).

23a

Appendix A

employees in the exercise of their rights. See 29 U.S.C.

§ 158(b)(1)(A). The Board also concluded that the ALJ need

not find a separate violation occurred when Feighner spit

on another driver because the remedial notice to the Union

already banned spitting. Finally, the Board concluded that

the ALJ did not err by not ruling on allegations of picket

line misconduct that were not included in the complaint.

On appeal, Rieth-Riley challenges the Board’s decision

not to reach 42 of the 44 picket misconduct allegations

raised at the hearing. Rieth-Riley also argues the Board

erred when it concluded that it need not find additional

violations because the remedial notice regarding the

assault violation was sufficient to apprise picketers of their

other unlawful conduct based on the limited allegations

in the complaint.

The General Counsel has “final authority” regarding

the filing, investigation, and prosecution of unfair labor

practice complaints. 29 U.S.C. § 153(d). Therefore,

“Congress has delegated to the Office of the General

Counsel ‘on behalf of the Board’ the unreviewable

authority to determine whether a complaint shall be

filed.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138,

95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975); McGlone v. Cintas

Corp., 35 F.3d 566, *4 [published in full-text format at 1994

U.S. App. LEXIS 24588] (6th Cir. 1994) (table) (citation

omitted) (explaining a “General Counsel’s refusal to issue

a complaint is within his prosecutorial discretion and the

courts are without jurisdiction to review that discretionary

act”). The General Counsel also has the discretion to

withdraw a complaint. UFCW, 484 U.S. at 126. While

24a

Appendix A

final orders of the Board are judicially reviewable under

Section 10(f) of the NLRA, the statute provides for no such

review of General Counsel decisions. 29 U.S.C. § 160(f); cf.

UFCW, 484 U.S. at 130 (explaining that “since respondent

concedes that the General Counsel’s decision not to file a

complaint is not reviewable under § 10(f), we perceive no

merit or logic in the argument that a settlement decision

of the General Counsel may be”). Because the decision not

to prosecute certain allegations was within the General

Counsel’s prosecutorial discretion, it cannot be reviewed

by this court under the NLRA.

Rieth-Riley’s other picket line misconduct allegations

were not fully litigated before the ALJ, and those claims

are therefore not reviewable by the Board and this court.

Whether an issue has been fully litigated is best illustrated

in the preclusion context. “An administrative board acts

in a judicial capacity when it hears evidence, gives the

parties an opportunity to brief and argue their versions

of the facts, and the parties are given an opportunity

to seek court review of any adverse findings.” Herrera

v. Churchill McGee, LLC, 680 F.3d 539, 547 (6th Cir.

2012) (quoting Nelson v. Jefferson County, 863 F.2d 18,

19 (6th Cir. 1988)). In Herrera, we gave preclusive effect

to a county administrative decision in the later federal

court proceedings because the plaintiff was given a full

and fair opportunity to litigate his claim through prior

administrative proceedings by presenting evidence and

seeking judicial review of the administrative decision. Id.

at 547-50.

While Rieth-Riley presented evidence of other

misconduct violations, the ALJ concluded most of that

25a

Appendix A

evidence was hearsay, and allowed it only as evidence

of state-of-mind under Federal Rule of Evidence 803(3).

Further, the ALJ unequivocally stated that those other

incidents of misconduct were not alleged in the complaint,

and the evidence was not presented for the truth of the

matter asserted, but instead to support Rieth-Riley’s

affirmative defense that the Union would use the

requested employee and subcontracting information

improperly. Also, the Union and General Counsel did not

present rebuttal evidence.

“Evidence without a supporting allegation cannot

serve as the basis of a determination of an unfair labor

practice.” Montgomery Ward & Co. v. NLRB, 385 F.2d

760, 763 (8th Cir. 1967). Typically, “[t]he Board may

not make findings or order remedies on violations not

charged in the General Counsel’s complaint or litigated

in the subsequent hearing” and “[e]ven where the record

contains evidence supporting a remedial order, the court

will not grant enforcement in the absence of either a

supporting allegation in the complaint or a meaningful

opportunity to litigate the underlying issue in the hearing

itself.” NLRB v. Blake Constr. Co., 663 F.2d 272, 279, 214

U.S. App. D.C. 95 (D.C. Cir. 1981). This approach is in

line with due process expectations and avoids forcing this

court to make decisions on an incomplete record. Contra

Action Auto Stores Inc., 298 NLRB 875, 876 n.2 (1990),

enfd. 951 F.2d 349 (6th Cir. 1991) (table) (per curiam) (“It

is well established that the Board may find a violation not

alleged in the complaint if the matter is related to other

violations alleged in the complaint, is fully and fairly

litigated , and no prejudice to the respondent has been

alleged or established.”) (emphasis added). Given the

26a

Appendix A

limited purpose of the evidence presented and that the

misconduct was not alleged in the complaint, we cannot

fairly conclude that both parties were provided with “an

opportunity to brief and argue their versions of the facts.”

Herrera, 680 F.3d at 547.

Finally, the ALJ’s notice remedy, as affirmed by the

Board, was sufficient to apprise the Union of the unlawful

conduct alleged in the complaint. At the time of the

hearing, the only remaining allegation in the complaint

was that Feighner “inflicted injury upon [Grinstern] by

striking [him] with a picket sign.” (Misconduct Compl.,

Admin R., PageID 1756.) Again, this court must defer to

the General Counsel’s prosecutorial discretion to pursue

only one incident of misconduct. See Sears, Roebuck & Co.,

421 U.S. at 138. Although Rieth-Riley presented testimony

that Feighner also blocked the facility driveway, damaged

vehicles, and seized Grinstern’s personal property, the

ALJ was not tasked with making a finding as to those

actions. The complaint was limited to Feighner striking

Grinstern with a picket sign. Therefore, the notice

sufficiently warned striking members that they could not

“[p]hysically assault[] individuals, by hitting them with

picket signs or spitting in their face” because it violated

Section 8(b)(1)(A) of the NLRA. (Board Decision & Ord.,

PageID 2477.)

IV.

For the foregoing reasons, we DENY Rieth-Riley’s

petition for review and GRANT the NLRB’s crossapplication for enforcement of its order in full.

27a

Appendix B OF THE UNITED

APPENDIX B — JUDGMENT

STATES COURT OF APPEALS FOR THE SIXTH

CIRCUIT, FILED AUGUST 14, 2024

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 23-1899/1946

RIETH-RILEY CONSTRUCTION CO., INC.,

Petitioner/Cross-Respondent,

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross-Petitioner.

Before: MOORE, COLE, and MATHIS, Circuit Judges.

JUDGMENT

THIS MATTER came before the court upon RiethRiley Construction Co., Inc.’s petition for review of an

order of the National Labor Relations Board and the

Board’s cross-application for enforcement.

UPON FULL REVIEW of the record and the briefs

and arguments of counsel,

IT IS ORDERED that the petition for review is

DENIED and the cross-application for enforcement is

GRANTED.

28a

Appendix B

ENTERED BY ORDER OF THE COURT

/s/ Kelly L. Stephens

Kelly L. Stephens, Clerk

29a

APPENDIX CAppendix

— DECISIONS

OF THE

NATIONAL LABOR RELATIONS BOARD,

FILED DECEMBER 15, 2023

Rieth-Riley Construction Co., Inc. and.

Local 324, International Union of Operating

Engineers (IUOE), AFL–CIO. Cases 07–CA–261954;

07–CA–269365; and 07–CB–247398

September 28, 2023

DECISION AND ORDER

By Chairman Mcferran and Members Kaplan And

Prouty

On July 18, 2022, Administrative Law Judge Charles

J. Muhl issued the attached decision. The General

Counsel, Respondent Rieth-Riley, and the Respondent

Union filed exceptions and supporting briefs. The General

Counsel, Respondent Rieth-Riley, and the Respondent

Union each filed answering briefs and reply briefs.

The National Labor Relations Board has delegated

its authority in this proceeding to a three-member panel.

30a

Appendix C

The Board has considered the decision and the record in

light of the exceptions1 and briefs and has decided to affirm the

judge’s rulings, findings, 2 and conclusions3 and to adopt the

1. On exception, Respondent Rieth-Riley argues that the

removal from office of then-General Counsel Peter Robb by

President Biden renders the complaint in this case invalid. We have

determined that such challenges to the authority of the Board’s

General Counsel based upon the President’s removal of former

General Counsel Robb have no legal basis. See Aakash, Inc. d/b/a

Park Cent. Care & Rehab. Ctr., 371 NLRB No. 46, slip op. at 1

(2021) (finding that superseding Supreme Court decision resolved

claim that President’s removal of General Counsel violated Sec.

3(d)), enfd. 58 F.4th 1099, 1103-1105 (9th Cir. 2023); see also

Exela Enterprise Solutions v. NLRB, 32 F. 4th 436 (5th Cir. 2022)

(holding that the Act “does not provide tenure protections to the

General Counsel of the Board” and that President Biden therefore

lawfully removed former General Counsel Robb without cause).

Member Kaplan acknowledges and applies Aakash as Board

precedent, although he expressed disagreement there with the

Board’s approach and would have adhered to the position the

Board adopted in National Assoc. of Broadcast Employees and

Technicians--The Broadcasting and Cable Television Workers

Sector of the CWA, AFL–CIO, Local 51, 370 NLRB No. 114, slip

op. at 2 (2021). See Aakash, 371 NLRB No. 46, slip op. at 4–5

(Members Kaplan and Ring, concurring).

2. The Respondent Union and Respondent Rieth-Riley have

excepted to some of the judge’s credibility findings. The Board’s

established policy is not to overrule an administrative law judge’s

credibility resolutions unless the clear preponderance of all the

relevant evidence convinces us that they are incorrect. Standard

Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d

Cir. 1951). We have carefully examined the record and find no basis

for reversing the findings.

3. We agree with the judge, for the reasons he states, that

Respondent Rieth-Riley violated Sec. 8(a)(5) by failing and refusing

31a

Appendix C

to provide the Union with relevant information requested by the

Union on June 1, 2020, related to “the percentage of work covered

by the expired 2013- 2018 MITA/IUOE 324 Road Agreement that

has been subcontracted” by the Respondent, and by failing and

refusing to provide the Union with relevant information requested

by the Union on November 3, 2020, related to employees’ terms and

conditions of employment. Member Kaplan emphasizes that, based

on its wording, the June 1, 2020 request requires the Respondent

to provide documents indicating the overall percentage of work

subcontracted under the Road Agreement; should the Union

seek any information beyond documents indicating that overall

percentage, it would need to make a separate request.

In addition, we affirm the judge’s finding that the Respondent

Union violated Sec. 8(b)(1)(A) by striking employee Michael

Feighner’s assault on third-party driver Karl Grinstern. In

affirming this finding, Member Kaplan would not rely on the

portion of the judge’s analysis applying Clear Pine Mouldings,

268 NLRB 1044 (1984).

The judge also found that Feighner spit on another driver but

declined to find a violation because the allegation was not included

in the General Counsel’s complaint. Even if an allegation related

to this incident was closely related to the complaint allegation and

fully litigated, see, e.g., Pergament United Sales, 296 NLRB 333,

334 (1989), we would find it unnecessary to pass on the allegation

as any finding of a violation would not affect the remedy. See, e.g.,

Raymond F. Kravis Center for Performing Arts, 351 NLRB 143,

145 (2007), enfd. 550 F.3d 1183 (D.C. Cir. 2008).

We also find no merit to Respondent Rieth-Riley’s arguments

that the judge erred in failing to find that numerous additional acts

of picket line misconduct not alleged in the complaint violated the

Act. It is well settled that a charging party cannot enlarge upon or

change the General Counsel’s theory of a case. See Hobby Lobby

Stores, Inc., 367 NLRB No. 78, slip op. at 1, fn. 3 (2019).

32a

Appendix C

recommended Order as modified and set forth in full below.4

Amended Conclusions of Law

1. Substitute the following for paragraph 4. “4. RiethRiley violated Section 8(a)(5) and (1) by refusing to provide

the Union with documents indicating the percentage

of work covered by the expired Road Agreement that

had been subcontracted as requested by the Union on

June 1, 2020, and information about employees’ terms

and conditions of employment requested on November

3, 2020, that are relevant and necessary to the Union’s

performance of its functions as the exclusive collectivebargaining representative of employees in the abovedescribed, appropriate unit.”

4. We have amended the judge’s conclusions of law to conform

with his unfair labor practice findings, specifically limiting

the violation concerning the June 1, 2020 information request

to documents indicating the percentage of work that had been

subcontracted. We shall modify the judge’s recommended Order

to conform to the Board’s standard remedial language and in

accordance with our decision in Paragon Systems Inc., 371 NLRB

No. 104, slip op. at 3 (2022), and we shall substitute new notices to

conform to the Order as modified. Member Kaplan acknowledges

and applies Paragon Systems as Board precedent, although he

expressed disagreement there with the Board’s approach and

would have adhered to the position the Board adopted in Danbury

Ambulance Service, Inc., 369 NLRB No. 68 (2020).

We also decline to order an affirmative bargaining order, as

requested by the General Counsel and the Union, because we find

the traditional remedies are sufficient to remedy the unfair labor

practices committed by Respondent Rieth-Riley in this case, i.e.,

unlawfully refusing to provide requested relevant information.

33a

Appendix C

ORDER

A. The National Labor Relations Board orders that the

Respondent, Rieth-Riley Construction Co., Inc., Goshen,

Indiana, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Refusing to bargain collectively with Local 324,

International Union of Operating Engineers, AFL–CIO

(the Union) by failing and refusing to furnish it with

requested information that is relevant and necessary to

the Union’s performance of its functions as the collective

bargaining representative of the Respondent’s unit

employees.

(b) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of the

rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Furnish to the Union in a timely manner the

information requested by the Union on June 1, 2020,

concerning documents indicating the percentage of work

covered by the expired 2013–2018 Road Agreement that

was subcontracted from June 1, 2016, to June 1, 2020.

(b) Furnish to the Union in a timely manner the

information requested by the Union on November 3, 2020.

34a

Appendix C

facilities in the State of Michigan copies of the attached

notice marked “Appendix A.”5 Copies of the notice, on

forms provided by the Regional Director for Region

7, after being signed by the Respondent’s authorized

representative, shall be posted by the Respondent and

maintained for 60 consecutive days in conspicuous places,

including all places where notices to employees are

customarily posted. Reasonable steps shall be taken by

the Respondent to ensure that the notices are not altered,

defaced, or covered by any other material. In addition

to physical posting of paper notices, the notices shall be

distributed electronically, such as by email, posting on

5. If the facilities involved in these proceedings are open

and staffed by a substantial complement of employees, the notice

must be posted within 14 days after service by the Region. If the

facilities involved in these proceedings are closed or not staffed

by a substantial complement of employees due to the Coronavirus

Disease 2019 (COVID-19) pandemic, the notice must be posted

within 14 days after the facilities reopen and a substantial

complement of employees have returned to work. If, while closed

or not staffed by a substantial complement of employees due to the

pandemic, the Respondent is communicating with its employees by

electronic means, the notice must also be posted by such electronic

means within 14 days after service by the Region. If the notice

to be physically posted was posted electronically more than 60

days before physical posting of the notice, the notice shall state

at the bottom that “This notice is the same notice previously [sent

or posted] electronically on [date].” If this Order is enforced by

a judgment of a United States court of appeals, the words in the

notice reading “Posted by Order of the National Labor Relations

Board” shall read “Posted Pursuant to a Judgment of the United

States Court of Appeals Enforcing an Order of the National Labor

Relations Board.”

35a

Appendix C

an intranet or an internet site, and/or other electronic

means, if the Respondent customarily communicates

with its employees by such means. If the Respondent

has gone out of business or closed the facility involved

in these proceedings, the Respondent shall duplicate

and mail, at its own expense, a copy of the notice to all

current employees and former employees employed by the

Respondent at any time since June 1, 2020.

(d) Within 21 days after service by the Region, file with

the Regional Director for Region 7 a sworn certification

of a responsible official on a form provided by the Region

attesting to the steps that the Respondent has taken to

comply.

B. The National Labor Relations Board orders that the

Respondent, Local 324, International Union of Operating

Engineers (IUOE), AFL-CIO, Broomfield Township,

Michigan, its officers, agents, and representatives, shall

1. Cease and desist from

(a) Physically assaulting individuals, by hitting them

with picket signs or spitting in their face, in the presence

of employees on a picket line.

(b) In any like or related manner restraining

or coercing employees in the exercise of the rights

guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

36a

Appendix C

(a) Post at its Broomfield Township, Michigan union

office copies of the attached notice marked “Appendix

B.” 6 Copies of the notice, on forms provided by the

Regional Director for Region 7, after being signed by the

Respondent’s authorized representative, shall be posted

by the Respondent and maintained for 60 consecutive days

in conspicuous places, including all places where notices

to employees and members are customarily posted. In

addition to physical posting of paper notices, notices shall

be distributed electronically, such as by email, posting

on an intranet or an internet site, and/or other electronic

means, if the Respondent customarily communicates with

6. If the Respondent’s office and meeting places are open

and accessible to a substantial complement of employees and

members, the notice must be posted within 14 days after service

by the Region. If the office and meeting places involved in

these proceedings are closed or not accessible by a substantial

complement of employees and members due to the Coronavirus

Disease 2019 (COVID-19) pandemic, the notice must be posted

within 14 days after the office and meeting places reopen and are

accessible by a substantial complement of employees and members.

If, while closed or not accessible by a substantial complement of

employees and members due to the pandemic, the Respondent is

communicating with employees and members by electronic means,

the notice must also be posted by such electronic means within

14 days after service by the Region. If the notice to be physically

posted was posted electronically more than 60 days before physical

posting of the notice, the notice shall state at the bottom that “This

notice is the same notice previously [sent or posted] electronically

on [date].” If this Order is enforced by a judgment of a United

States court of appeals, the words in the notice reading “Posted by

Order of the National Labor Relations Board” shall read “Posted

Pursuant to a Judgment of the United States Court of Appeals

Enforcing an Order of the National Labor Relations Board.”

37a

Appendix C

its members by such means. Reasonable steps shall be

taken by the Respondent to ensure that the notices are

not altered, defaced, or covered by any other material.

(b) Within 21 days after service by the Region,

file with the Regional Director for Region 7 a sworn

certification of a responsible official on a form provided

by the Region attesting to the steps that the Respondent

has taken to comply.

Dated, Washington, D.C. September 28, 2023

Lauren McFerran,

Chairman

Marvin E. Kaplan,

Member

David M. Prouty,

Member

(SEAL)

National Labor Relations Board

APPENDIX A

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we

violated Federal labor law and has ordered us to post and

obey this notice.

38a

Appendix C

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your

behalf

Act together with other employees for your benefit

and protection

Choose not to engage in any of these protected

activities.

We will not refuse to bargain collectively with Local

324, International Union of Operating Engineers, AFL–

CIO (the Union) by failing and refusing to furnish it with

requested information that is relevant and necessary to

the Union’s performance of its functions as the collectivebargaining representative of our unit employees.

We will not in any like or related manner interfere

with, restrain, or coerce you in the exercise of the rights

listed above.

We will furnish to the Union in a timely manner

the information requested by the Union on June 1, 2020,

concerning documents indicating the percentage of work

covered by the expired 2013–2018 Road Agreement that

was subcontracted from June 1, 2016, to June 1, 2020.

We will furnish to the Union in a timely manner the

information requested by the Union on November 3, 2020.

39a

Appendix C

Rieth-Riley Construction Co., Inc.

The Board’s decision can be found at https://www.

nlrb.gov/case/07-CA-261954 or by using the QR code

below. Alternatively, you can obtain a copy of the decision

from the Executive Secretary, National Labor Relations

Board, 1015 Half Street, S.E., Washington, D.C. 20570,

or by calling (202) 273-1940.

APPENDIX B

Notice To Employees and Members

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we

violated Federal labor law and has ordered us to post and

obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

40a

Appendix C

Choose representatives to bargain on your behalf

with your employer

Act together with other employees for your benefit

and protection

Choose not to engage in any of these protected

activities.

We will not physically assault individuals, by hitting

them with picket signs or spitting in their face, in the

presence of employees on a picket line.

We will not in any like or related manner restrain

or coerce you in the exercise of the rights listed above.

LOCAL 324, INTERNATIONAL UNION

OF OPERATING ENGINEERS (IUOE), AFL–CIO

The Board’s decision can be found at https://www.

nlrb.gov/case/07-CA-261954 or by using the QR code

below. Alternatively, you can obtain a copy of the decision

from the Executive Secretary, National Labor Relations

Board, 1015 Half Street, S.E. Washington, D.C. 20570, or

by calling (202) 273-1940.

41a

Appendix C

DECISION

Charles J. Muhl, Administrative Law Judge. This

is the second unfair labor practice case arising out of

a collective bargaining relationship gone bad between

Rieth-Riley Construction Co., Inc. and Local 324 of the

International Union of Operating Engineers. The General

Counsel’s complaint in Cases 07–CA–261954 and 07–CA–

269365 alleges that Rieth-Riley refused on two occasions

to provide the Union with requested, relevant information.

The first request sought the percentage of work that

Rieth-Riley subcontracted over a 4-year period. The

second request sought the names, job classifications, and

compensation, both wages and benefits, of bargaining unit

employees. The General Counsel’s complaint in Case 07–

CB–247398 alleges that, during the Union’s ongoing strike

against Rieth-Riley, one of its picketers inflicted injury

upon a non-striking employee at Rieth-Riley’s asphalt

plant in Lansing, Michigan by hitting that employee with

a picket sign. Why this odd pairing of cases? To defend

against the refusal to-provide-information allegations,

Rieth-Riley principally claims that it was justified in not

providing the information based on a clear and present

danger that the Union would misuse it to harass nonstriking employees and subcontractors. I conclude that

Rieth-Riley’s refusals to provide information were not

justified and violated Section 8(a)(5) and (1). I also find

that the picketer’s hitting of the non-striking employee

with a picket sign, for which the Union is culpable, violated

Section 8(b)(1)(A).1

1. On July 30, 2020, the General Counsel, through the

Regional Director for Region 7 of the National Labor Relations

42a

Appendix C

For 9 days during June, September, and October 2021,

by videoconference, I conducted a trial on the General

Counsel’s complaints. On December 21, 2021, the General

Counsel, the Union, and Rieth-Riley filed posthearing

briefs. On the entire record and after carefully considering

those briefs, I make the following findings of fact and

conclusions of law. 2

Board (the Board), issued a complaint in Case 07–CB–247398

against the Union. The complaint was premised upon an unfair

labor practice charge filed by Rieth-Riley on August 29, 2019.

On August 13, 2020, the Union filed an answer to the complaint

denying the substantive allegations. On September 24, 2020,

the General Counsel issued a complaint in Case 07–CA–261954

against Rieth-Riley. The complaint was premised on a charge

filed by the Union on June 18, 2020. On October 7, 2020, RiethRiley filed an answer to the complaint denying the substantive

allegations and asserting numerous affirmative defenses. On

December 14, 2020, Rieth-Riley filed a motion to consolidate

Cases 07–CB–247398 and 07–CA–261954 for hearing, which the

General Counsel and the Union opposed. On February 5, 2021,

the General Counsel issued a complaint in Case 07–CA–269365

against Rieth-Riley. The complaint was premised on a charge filed

by the Union on November 23, 2020. Contemporaneously with

issuing the complaint, the Regional Director also ordered Cases

07–CA–261954 and 07–CA–269365 consolidated for hearing. Via

order dated February 8, 2021, I granted Rieth-Riley’s motion

to consolidate Cases 07–CB–247398 and 07–CA–261954, which

effectively resulted in all three cases being consolidated for

hearing. On February 19, 2021, Rieth-Riley filed an answer to

the consolidated complaint in Cases 07–CA–261954 and 07–

CA–269365, denying the substantive allegations and asserting

numerous affirmative defenses.

2. In order to aid review, I have included citations to the

record in my findings of fact. The citations are not necessarily

exclusive or exhaustive. My findings and conclusions are based

on my review and consideration of the entire record. In assessing

43a

Appendix C

Findings of Fact3

Background

Rieth-Riley Construction Co., Inc. (Rieth-Riley or

the Company) is a heavy highway construction contractor

which performs asphalt paving and other road construction

work throughout Michigan. The company’s headquarters

is in Goshen, Indiana. Since 2009, Keith Rose has been

Rieth-Riley’s president and, in 2011, he also became its

chief executive officer. Local 324, International Union of

Operating Engineers, AFL–CIO (IUOE Local 324 or the

Union) represents over 14,000 employees/union members

at road construction contractors throughout the State

of Michigan. Since May 2016, Ken Dombrow has been

witnesses’ credibility, I have considered their demeanors, the

context of the testimony, the quality of their recollections,

testimonial consistency, the presence or absence of corroboration,

the weight of the respective evidence, established or admitted

facts, inherent probabilities, and reasonable inferences that may

be drawn from the record as a whole. See Double D Construction

Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB

622, 623 (2001) (citing Shen Automotive Dealership Group, 321

NLRB 586, 589 (1996)), enfd. sub nom. 56 Fed.Appx. 516 (D.C. Cir.

2003). Where needed, I discuss specific credibility resolutions in

my findings of fact

3. At the hearing, I granted the General Counsel’s unopposed

motion to admit the transcripts and exhibits from the first unfair

labor practice case involving Rieth-Riley and the Union (RiethRiley 1) in this case for the purpose of efficiency. (Tr. 15.) The lead

case number in Rieth-Riley 1 is 07–CA–234085. Any citations to

the Rieth-Riley 1 transcript or exhibits in this decision will contain

a “RR1” designation. Other transcript and exhibit citations are

to those in this case.

44a

Appendix C

the Union’s president. Since September 2012, Douglas

Stockwell has been the Union’s business manager. The

last collective-bargaining agreement between Rieth-Riley

and the Union covering highway and road construction in

Michigan ran from March 19, 2013, to May 31, 2018 (the

road agreement). Rieth-Riley and the Union have been

negotiating a successor contract since November 2018,

but have not reached an agreement.4

II. The August 13, 2019 Picket Line Altercation

On July 31, 2019, as contract negotiations were

ongoing, the Union went on strike against Rieth-Riley.5

Thereafter, the Union set up picket lines at 10 or more

Rieth-Riley facilities throughout the State of Michigan.

Picketing continued until mid-November, when the

construction season ended in Michigan.

4. The expired road agreement was between the Union and

the Michigan Infrastructure and Transportation Association,

Inc. (MITA), a multiemployer bargaining association. RiethRiley designated MITA as its bargaining representative for the

negotiations resulting in that contract. Current negotiations

between Rieth-Riley and the Union are being done on an

individual, not multiemployer, basis.

In its answer to the consolidated complaint in Cases 07–CA–

261954 and 07–CA–269365, Rieth-Riley admitted, and I so find,

that the Board has jurisdiction in these cases and it is a Sec. 2(2),

(6), and 7 employer. It also admitted, and I so find, that the Union

is a Sec. 2(5) labor organization. In its answer to the complaint in

Case 07–CB–247398, the Union admitted the same things.

5. All dates hereinafter are in 2019, unless otherwise

indicated.

45a

Appendix C

One of the Rieth-Riley facilities where the Union

picketed was an asphalt plant in Lansing (the Lansing

facility), where asphalt is loaded onto trucks for transport

to road construction jobs. The Lansing facility has a

driveway entrance to the south of the facility and a

driveway exit to the north. The exit is approximately 20

feet wide. The posted speed limit inside the facility is 5

miles per hour. Both driveways can be accessed via Creyts

Road, an adjacent four-lane road which also has a turn

lane and a 55 mile-per-hour speed limit. At the Lansing

facility, about 25 to 30 Rieth-Riley employees went on

strike. The Union told striking employees to report to

their work facility on the first day of the strike and picket

there. The picketing occurred daily from 7 a.m. to 5 p.m.

At the beginning of the strike, Union Representatives

Ryan Doom and Zane Hubbard spoke to Michael Feighner,

a striking Rieth-Riley employee, about picketing. Doom

said the picketers needed to conduct themselves in a

professional way and to let vehicles in and out. Doom also

stated that the Union did not want any problems that

would end up in court. Hubbard similarly told Feighner

just to let vehicles in and out and not hold them up, as well

as not to touch the trucks.6

On August 13, the Union assigned picketers to both

driveways of the Lansing facility. At the north driveway,

the picketers were Feighner; Robert Nevins, another

Rieth-Riley employee who was on strike at the time; and

a third unidentified individual.7 Union Representative

6. GC Exh. 2; Tr. 29, 32, 36–37, 144, 249–251, 681.

7. It appears that a third picketer was present at the north

driveway on that date. (Tr. 178.) However, the record does not

46a

Appendix C

Ronald Heurtebise was stationed at the south driveway

that day with two to four other picketers. At approximately

1 p.m., truckdrivers Karl Grinstern and Chad Feibig

arrived at the facility to pick up loads of asphalt. At the

time, Grinstern and Feibig were employees of McKerney

Asphalt and Sealing. Grinstern arrived through the south

entrance, had his truck loaded with asphalt, and proceeded

to the north driveway to exit the facility. Grinstern’s

loaded truck weighed anywhere from 80,000 to 160,000

pounds.

As Feighner and Nevins walked the picket line

back and forth across the driveway, Feighner observed

Grinstern’s truck approaching the exit at approximately 3

to 4 miles per hour. That was a faster-than-normal speed

compared with other vehicles leaving the facility that day.

Feighner attempted to finish crossing the driveway to a

clear location but, before he could do so, the truck hit the

left side of Feighner’s body with the headlight area of the

driver’s side of the truck. The impact spun Feighner around

and caused his footing to slip. Feighner walked to the

driver’s side door, during which he jabbed the truck with

his picket sign. When he got to the door, he held his picket

Feighner said to Grinstern, “Hey, stupid, you just hit me

with your fucking truck.” Grinstern, who had his window

down, giggled at Feighner. That prompted Feigner to yell,

“You find that funny? I don’t find that funny. You could

have fucking run me over.” Feigner then jabbed Grinstern

establish who the picketer was or any involvement of the picketer

in the material events in this case.

47a

Appendix C

in the arm with the picket sign stick approximately 6

to 8 times, causing visible injuries. At some point while

being jabbed, Grinstern pulled the paper off the picket

sign and into his truck. He ultimately grabbed the picket

sign stick and took that inside his truck as well. Feighner

then opened the driver’s side door. The two went back and

forth a couple of times opening and closing the door. Then

Feighner took the keys out of the ignition and Grinstern

got out of the truck. The two were standing face-to-face.

Feighner yelled at Grinstern that he could have Grinstern

arrested for attempting to murder him with a vehicle. He

also told him to “slow the fuck down.” Feighner spit in

Grinstern’s face as he yelled. Grinstern told Feighner to

give him his keys back or they were “going to have some

serious problems.” Grinstern then took his keys back from

Feighner. Union Representative Heurtebise walked over

to the north driveway upon hearing the yelling and got

between Grinstern and Feighner. Grinstern returned

to his truck, started it, and exited the facility. After

Grinstern left, Heurtebise suggested to Feighner that he

go home for the day. The Union paid Feighner for picketing

and did not discipline him for his conduct that day.

At the hearing, both Feighner (Tr. 138–140, 142,

145, 150–151, 155–156, 158–159, 165–166, 262–263; GC

Exh. 5) and Grinstern (Tr. 36–41, 69, 72–74, 97) testified

concerning their altercation. Nevins (Tr. 227–231, 254–

255) and Feibig (Tr. 108–109, 113–114) testified concerning

what they observed of the altercation. Heurtebise

testified about his intervention at the scene at the end

of the altercation. (Tr. 172–173, 176–179.) Feighner’s and

Grinstern’s testimony largely was consistent. Despite the

48a

Appendix C

consistency, three critical conflicts required credibility

determinations to reach the above findings of fact.

The most imperative conflict was whether Feighner

repeatedly jabbed Grinstern’s arm with his picket sign, as

Grinstern and Feibig testified, or just held it at Grinstern’s

face, as Feighner and Nevins testified. I credit the

testimony of Grinstern and Feibig on this question and

find that Feighner did repeatedly jab Grinstern. Feigner

testified that he sustained injuries from the altercation,

including to his left arm from being jabbed and to one of

his fingers which he pressed into a staple when grabbing

the picket sign stick. Both the General Counsel and RiethRiley also entered into evidence contemporaneous pictures

of Grinstern’s arm, which was bruised and had blood

spots. (GC Exhs. 3, 4; RR Exhs. 2–3, 25.) That evidence

corroborates Grinstern’s testimony. In contrast, Feigner

testified that he did not strike Grinstern with the sign

and that Grinstern grabbed the picket sign from him

without any struggle. The Union has no answer, because

none exists, for how Grinstern’s arm could be bloodied if

that was all that happened. The Union’s suggestion that

Grinstern injured himself when he and Feighner struggled

over the sign misses the mark, because Feighner himself

did not testify that any such struggle occurred.

The next conflict in testimony between Feighner and

Grinstern was where Grinstern’s truck hit Feighner. On

that question, I credit Feighner’s testimony that Grinstern

hit Feighner with the headlight area on the driver’s

side of the truck. (Tr. 138–139.) Grinstern contended

that Feighner intentionally walked into the side of his

49a

Appendix C

truck without any instigation. However, Feibig saw the

altercation between Feighner and Grinstern at the driver’s

side door, but testified that he did not see any contact

between Grinstern’s truck and Feighner. (Tr. 117.) Feibig

would have seen it if the contact occurred as Grinstern

claimed. Moreover, when Grinstern was pressed during

cross-examination concerning whether the contact was at

the front, not the side of his truck, Grinstern ultimately

agreed to the former. Before doing so, his responses to

an uncomplicated question (where Feighner came into

contact with the truck) repeatedly were unclear and his

demeanor when so testifying appeared untrustworthy.

The final conflict is how fast Grinstern was driving

when he struck Feighner. I credit Feighner’s testimony

that Grinstern’s truck was going 3 to 4 miles per hour

when it struck him, not moving at a crawl or slower

than walking as Grinstern claimed. (Tr. 38, 139.)

Feighner’s angry reaction to Grinstern’s truck hitting

him is indicative of Grinstern driving too fast under

the circumstances. Feighner stated that he got in the

altercation with Grinstern because he got “run . . . over”

with a “loaded dump truck,” and that he was “outraged”

at what happened. (Tr. 144–145, 148–149.) Feighner’s

conduct would be an overreaction if he merely was tapped

by a truck that was proceeding at a speed of crawling or

less than walking.

Accordingly, as detailed above, I find that Grinstern

hit Feighner with the front of his truck going at a rate of

speed between 3 and 4 miles per hour. I also find that, in

response to being struck by the truck, Feighner jabbed

50a

Appendix C

Grinstern with his picket sign a total of 6 to 8 times,

thereby injuring him, and also spit in Grinstern’s face. 8

8. Later on the same day of the altercation, Grinstern

reported it to the Eagle County Sheriff’s Department and he and

Feibig met with two police officers at the Rieth-Riley Lansing

facility. (Tr. 69, 120.) The officers interviewed Grinstern and

Feibig, writing up reports of what the two told them. Body cam

video footage of an officer’s conversation with Grinstern also was

taken. The reports and video footage were entered into evidence.

(RR Exhs. 23, 24; U. Exh. 66; RR1 GC Exh. 130). I give little

weight to the hearsay statements contained therein. I further note

that the two officers testified at the hearing but had essentially

no recall of their interactions with Grinstern and Feibig that

day. (Tr. 737–758, 1251–1264.) The officers also never followed

up with Feighner to obtain his side of the story and did not take

any further action on Grinstern’s allegations. (Tr. 145.) However,

I do rely upon additional photos of Grinstern’s injuries taken on

August 13, 2019, by one of the deputies and of the picket sign stick

that Grinstern gave the deputies as evidence. (RR Exhs. 25, 26.)

Feighner and Feibig also testified concerning their interaction

at the Lansing asphalt plant after Grinstern exited the facility.

Feibig claimed that Feighner opened his truck door and tried

to get in, then spit on him. (Tr. 116–117.) In contrast, Feighner

testified that Feibig stated to him: “You fucking spic, I’ll fucking

whip your ass. You want me to come on you and whip your ass.”

Feighner responded: “You fucking brat, get out of there, come on

out here.” He then opened Feibig’s door and Feibig shut it. (Tr.

140–141.) I credit Feibig’s testimony regarding Feighner spitting

on him during their conversation, as Feighner was not asked and

therefore did not deny that he did so. I do not credit Feighner’s

testimony concerning what Feibig allegedly said to him, as it was

not corroborated by anyone even though multiple other picketers

were present at the time. Feighner’s demeanor when providing

this testimony also appeared unreliable. However, the General

51a

Appendix C

III. The Union’s Information Requests

Contract Negotiations Between RiethRiley and the Union on Subcontracting

As previously noted, negotiations for a successor road

agreement between Rieth-Riley and the Union began in

November 2018. The parties had 10 bargaining sessions

from November 2018 through September 2019, but

have not reached an overall agreement. Subcontracting

and wages were two outstanding issues. On July 8, the

Union proposed subcontracting language which would

have required Rieth-Riley to subcontract work only to

subcontractors who would comply with the rates, terms,

and conditions of the road agreement. The Union had

obtained that language in successor contracts with other

road agreement contractors. Rieth-Riley opposed this

provision. On July 29, Rieth-Riley provided the Union with

a subcontracting counterproposal in which it would agree

to the Union’s language with respect to seven counties

within the State of Michigan, but not for the remaining

counties. The Union rejected the proposal, because the

Union’s successor contracts with other contractors also

contained a most-favored-nations-clause. It meant that

any agreement with Rieth-Riley to limit the Union’s

subcontracting language to certain Michigan counties

would apply to other road agreement contractors.9

Counsel’s complaint does not allege that Feighner’s spitting on

Feibig violated Sec. 8(b)(1)(A) and no legal argument is made in

the General Counsel’s brief that I should so find. Accordingly, I

decline to address whether this conduct was unlawful.

9. Tr. 214, 222–223; RR 1 C. Exhs. 217, 219, 223, 224; RR1

Tr. 1512, 1576–1578, 2554–2662. The evidence in Rieth-Riley 1

52a

Appendix C

At one of the negotiation sessions, on an unspecified

date, Stockwell and Rose spoke about subcontracting in a

side bar. Stockwell told Rose he “might as well die on the

vine” if the Union did not get its desired subcontracting

language, because contractors could decide at any time to

use nonunionized subcontractors. Rose told Stockwell that

the Union’s proposal would put Rieth-Riley out of business.

He added that the west side of the State of Michigan was

a “different animal than anywhere else” and the Company

could not have the Union’s subcontracting language there.

Rose asked Stockwell if he was willing to burn the house

down over subcontracting and Stockwell told him yes.10

B. The First Decertification Petition

On March 11, 2020, a petition was filed seeking

an election to decertify the Union as the bargaining

representative of the Rieth-Riley operating engineers

bargaining unit in Michigan. On March 20, 2020, the

Acting Regional Director for Region 7 issued a decision

to block the processing of the petition, in part due to

the litigation of the alleged unfair labor practices in

Rieth-Riley 1. On March 23, 2020, Rieth-Riley filed with

the Board a request for review of the Acting

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.