Appeals Court brief: Labor Board violated federal law and its own rules to stifle Rieth-Riley workers’ statutory right to vote to remove unwanted IUOE union

Cincinnati, OH (July 28, 2025) – Rayalan Kent, a Michigan-based employee of asphalt paving company Rieth-Riley, has just filed an amicus brief with the Sixth Circuit Court of Appeals in a case that could restore a substantial amount of power to workers in deciding whether they should be subject to union control. Kent has received free legal representation from National Right to Work Foundation staff attorneys since 2020 when he began his efforts to vote the union out of his workplace.

In the Sixth Circuit case Rieth-Riley Construction Co. vs. National Labor Relations Board (NLRB), Kent’s employer is arguing against the NLRB’s dismissal of valid petitions backed by Kent and his coworkers, which asked the Board to administer a vote at his workplace to remove (or “decertify”) the International Union of Operating Engineers (IUOE) Local 324. That contention is part of Rieth-Riley’s larger defense of its decision not to continue negotiating with the IUOE union.

While Kent and his fellow employees were eventually able to exercise their right to vote on the IUOE, the NLRB in 2022 dismissed his petitions and halted the election, declining to count the already-cast ballots just hours before the vote tally, calling it a “merit-determination” dismissal. This dismissal was based on unfair labor practice allegations the IUOE filed against Rieth-Riley management in 2018. But the NLRB never held a hearing on whether those alleged practices had any connection to Kent and his coworkers’ desire to oust the union.

Kent’s brief urges the Sixth Circuit to use Rieth-Riley Construction Co. as an opportunity to invalidate the NLRB’s “merit-determination” dismissal policy. The brief also asks the Court to order the NLRB to take the long-overdue step of counting the ballots in Mr. Kent’s decertification election, so he and his coworkers can properly exercise their right to vote on the union.

Federal Labor Board’s Actions Violated Statutory Authority and Agency’s Own Regulations

Kent’s amicus brief argues that the NLRB’s use of “merit-determination” dismissals – a “blocking charge” policy – violates the agency’s statutory authority and the purpose of the National Labor Relations Act (NLRA), the federal law the NLRB is responsible for enforcing. The NLRA requires that the Board hold a hearing and an election when employees submit a valid petition requesting a union decertification vote. However, “by dismissing Mr. Kent’s decertification petitions based on the mere allegations in the Union’s blocking charge, the Region and the Board failed to comply with Congress’ directive that the Board ‘shall’ conduct a hearing and ‘shall’ conduct an election when a question of representation exists,” says the amicus brief.

The brief also points out that the NLRB’s “merit-determination” dismissal policy violates rules the agency itself promulgated. In 2020, the NLRB finalized its Election Protection Rule (EPR), which, among other things, mandated that “blocking charges” could no longer stop workers from exercising their right to vote in a union decertification election. The EPR instead required the NLRB to hold elections and tally votes before dealing with any allegations surrounding the employer conduct. “Here, the Board is refusing to follow its own rules by dismissing Mr. Kent’s decertification petitions because of speculation, unproven allegations, and a confidential ‘investigation’ to which he is not privy,” the brief reads.

“In this brief, Rayalan Kent and his coworkers speak for all independent-minded American workers, whose clear right under federal law to vote to remove union officials they disapprove of is gravely threatened by the existence of the NLRB’s various invented non-statutory policies,” commented National Right to Work Foundation President Mark Mix. “Union bosses should not be able to unilaterally override this right, and the Sixth Circuit needs to restore to workers their fundamental rights of free choice under the National Labor Relations Act.”