Labor & Employment Law Daily Wrap Up, PROCEDURE—6th Cir.: Construction company failed to show Acting GC violated Board rules by dismissing complaint allegations, (May 9, 2025)

By Molly Platnick

The Regional Director rested the decision to withdraw the company’s new allegations on “the Acting General Counsel’s prosecutorial discretion and... careful consideration of the evidence adduced during the underlying investigation.”

The Sixth Circuit affirmed the dismissal of a suit brought by a construction company that had filed an unfair labor practice charge against its employees’ union. The company’s suit alleged that an NLRB Regional Director and Acting General Counsel violated the Board’s rules by dismissing its administrative complaint. In the alternative, it argued that the Regional Director and General Counsel did not have authority to act because the previous General Counsel was improperly removed from office. The appeals court, in an unpublished opinion, found the argument the General Counsel was improperly removed from office was foreclosed by precedent and the allegations against the Regional Director and Acting General counsel were without merit (Rieth-Riley v. Kerwin, No. 24-1690 (6th Cir. May 6, 2025, unpublished)).

The construction company operates throughout Michigan and Indiana and its operating engineers are represented by Local 324, International Union of Operating Engineers, AFL-CIO. Michigan Infrastructure & Transportation Association (MITA) represents the company in collective bargaining. The union and MITA agreed to multiple collective bargaining agreements over the years, the last ending in June 2018.

ULP charge. That year, the union refused to bargain with MITA or the company. It ultimately agreed to bargain with the company only, but it later went on strike at the company’s jobsites throughout Michigan. The company alleged strike misconduct and brought an unfair labor practice charge against the union in 2019.

In May 2020, the Regional Director rejected all but one of the company’s allegations against the union. The company appealed to the General Counsel’s Office of Appeals, which ruled partially in its favor and remanded the case to the Regional Director, ordering that absent settlement, the Regional Director issue a complaint. The union did not request reconsideration of the decision and on remand the Regional Director issued a formal complaint against the union containing nine new allegations of misconduct in addition to the one that remained.

Removal of General Counsel. Meanwhile, in January 2021, President Biden removed the NLRB General Counsel from his position and replaced him days later with an Acting General Counsel. The union then asked the Regional Director to withdraw the charges in the complaint. Although the union argued that the request was an impermissible attempt at reconsideration in violation of NLRB rules, and that the Acting General Counsel lacked authority to withdraw or modify the complaint, the Regional Director, citing the Acting General Counsel’s prosecutorial discretion, withdrew the nine new allegations, leaving only the initial allegation. The company’s appeal was denied by the Office of Appeals, which explained that “The Acting General Counsel simply exercised his unreviewable final authority.”

Lawsuit. The company then brought the instant lawsuit, naming the Regional Director and Acting General Counsel as defendants and claiming that they violated the NLRB’s rules by reconsidering the merits of the case and dismissing the nine new charges in the administrative complaint. It also argued that the Regional Director and Acting General Counsel did not have the authority to make these decisions because the prior General Counsel had been improperly removed. The defendants appealed.

Administrative proceedings. During this same time period, the administrative proceedings continued and the single-issue complaint went forward against the union as part of a hearing with other related cases (Rieth-Riley I). Although the company attempted to present evidence of the nine other allegations, an ALJ, and then the Board, refused to consider them. The Board also rejected the company’s assertion the General Counsel had been unlawfully removed.

A Sixth Circuit panel denied the company’s petition for review and granted the Board’s cross-petition for enforcement. The appeals court declined to address the withdrawn allegations and found that the General Counsel had been lawfully removed. It subsequently denied en banc review and the Supreme Court denied the company’s petition for certiorari.

Dismissal. As to the instant lawsuit, before the Sixth Circuit ruled in Rieth-Riley I, the district court granted the Regional Director and Acting General Counsel’s motion to dismiss, finding it could not review whether the General Counsel’s decision to withdraw the nine new allegations in the complaint violated NLRB rules because the General Counsel had unreviewable discretion as to prosecutorial actions. It also declined to review the General Counsel’s denial of the company’s appeal and concluded that it did not have jurisdiction to review the argument that the General Counsel had been unlawfully removed from office.

Agency regulations. On appeal, the company acknowledged that Rieth-Riley I foreclosed its argument that the General Counsel had been unlawfully removed from office. It argued, however, that the Regional Director and Acting General Counsel violated agency regulations by dismissing the nine new allegations from the complaint. It pointed to a regulation that allows a party to move for reconsideration of an appeal decision within 14 days. Because the union did not move to have the appeal decision reconsidered within that time frame, the company contended, the Regional Director and Acting General Counsel violated agency regulations when they dismissed the appeal, which gave the district court subject-matter jurisdiction.

The court disagreed, finding the general counsel’s unfettered prosecutorial discretion made his decisions “not, generally, subject to judicial review.” Citing Supreme Court precedent, the court here equated the general counsel’s “unreviewable discretion to file a complaint” to the decision to withdraw a complaint before a hearing has occurred. Here, said the court, the Regional Director dismissed the allegations in the administrative complaint after remand but before a hearing before the NLRB.

Under U.S. ex rel. Accardi v. Shaughnessy, the construction company posited, even if courts cannot review General Counsel decisions, this claim focused on the Regional Director and Acting General Counsel’s “disregard [for] the procedural requirements for making that decision.” The court was persuaded that the construction company “nominally” stated a claim the NLRB did not follow is own regulations. This was not enough, however, to save the subject matter jurisdiction argument because it did not overcome the Acting General Counsel’s prosecutorial discretion.

The case is No. 24-1690.

Judge: Larsen, J.

Attorneys: Brian James Paul (Faegre Drinker Biddle & Reath) for Rieth-Riley Construction Co., Inc. Craig Richard Ewasiuk, National Labor Relations Board, for Elizabeth K. Kerwin.

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