Labor & Employment Law Daily Wrap Up, SUPREME COURT NEWS—High Court passes on case testing judicial scrutiny of NLRB adjudicative precedents, (Nov 10, 2026)

By Brandi O. Brown, J.D.

The Court declined the opportunity to weigh in on whether courts must independently interpret agency precedents announced through adjudication, denying review of a petition that argued the NLRB had effectively rewritten one of its own labor-law rules.

The U.S. Supreme Court declined to review a petition in Rieth-Riley Construction Co. v. NLRB, wherein the employer argued that the Sixth Circuit had improperly allowed the National Labor Relations Board to reinterpret one of its own longstanding precedents without independently analyzing what that precedent actually says.

Below, the Sixth Circuit held that the NLRB was entitled to enforcement of a bargaining order against the construction company, which the agency found had committed numerous unfair labor practices, including a weeks-long employee lockout, in the course of a long-running dispute with a union that had withdrawn from a multiemployer bargaining arrangement with the company. The Sixth Circuit concluded that the union had timely withdrawn from the multiemployer unit, and the employer had, in turn, unlawfully insisted on multiemployer bargaining, increased wages for bargaining-unit employees, and locked out members of the unit. Rieth-Riley, it found, had additionally unlawfully clawed back fringe-benefit contributions from unit employees and unlawfully increased their wages without bargaining with the union.

Rewrote the rule, says employer. According to the employer’s petition, the dispute centers on the NLRB's 1958 decision in Retail Associates, which governs when a union or employer may withdraw from a multiemployer bargaining unit. The company contends that the rule permits withdrawal only if notice is given before either the contract's modification deadline or an agreed-upon date for bargaining to begin.

Here, the union withdrew after the contract deadline had passed and no bargaining date had ever been agreed upon. The employer maintains that the Board improperly rewrote the rule by treating the phrase "the agreed-upon date" as though it meant "any agreed-upon date," thus allowing withdrawal even when no bargaining date existed. The company argues that this interpretation effectively nullifies part of the rule and contradicts the text of the Board's own precedent.

Loper Bright. The employer wrote:

“The conflict matters beyond this case. The NLRB “has chosen to promulgate virtually all the legal rules in its field through adjudication rather than rulemaking,” Allentown Mack, 522 U.S. at 374—and it is far from alone in engaging in case-by-case rulemaking. The Federal Trade Commission, Securities and Exchange Commission, Environmental Protection Agency, Federal Energy Regulatory Commission, Board of Immigration Appeals, and U.S. Patent and Trademark Office, among other agencies, all issue rules through adjudication that regulated parties must obey or else face the prospect of an enforcement action—just as if those rules were statutes or substantive legislative rules.[ ] If a reviewing court need not independently construe these standards—and if the issuing agency may silently recharacterize them without consequence—then the safeguard of reasoned decisionmaking that the APA established and that Loper Bright recognized is a dead letter for an entire category of agency law that currently lacks any settled interpretive methodology.” [footnote omitted]

Should not have deferred. The petition, therefore, relies heavily on the Supreme Court's decisions in Allentown Mack and Loper Bright, as well as the Court’s 2019 decision in Kisorv. Wilkie, arguing that agencies must be held to the standards they formally announce and cannot quietly change those standards through later interpretations. According to the company, the Sixth Circuit wrongly declined to interpret the Board's precedent using ordinary rules of construction, effectively deferring to the agency's reading of its own adjudicative decision.

Judicial scrutiny. Rieth-Riley contends that, because the NLRB and many other federal agencies create policy through case-by-case adjudication, allowing agencies to reinterpret their precedents without meaningful judicial scrutiny would undermine regulatory certainty and permit agencies to alter legal standards without openly acknowledging policy changes.

More broadly, it argued that courts have an independent duty under the Administrative Procedure Act to determine the meaning of agency-created rules, even when those rules were announced through adjudication rather than formal rulemaking.

Non-random panel. As an alternative basis for relief, the employer also argued that the judgment should be vacated because its appeal was heard by a Sixth Circuit panel that was not randomly assigned. The company contends that the same three judges had previously heard unrelated Rieth-Riley labor cases and then assigned themselves to this appeal and a companion case, contrary to the court's usual panel-selection procedures. The petition argues that this irregularity raises concerns about the integrity of the appellate process and warrants remand to a properly assigned panel.

With the denial of certiorari, however, the Court has declined, for now, the invitation to reconsider the proper role of courts in reviewing agencies' interpretations of their own adjudicative precedents.

The docket is No. 26-306.

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