Labor & Employment Law Daily Wrap Up, LABOR—ORGANIZING, ELECTIONS—10th Cir.: Substantial evidence supported NLRB finding that employer threatened job loss if drivers organized, (May 13, 2025)

By Ronald Miller, J.D.

Broad inquiry about union activity, that didn’t ask about specific individuals or about the driver’s involvement in organizing efforts, was not “coercive in nature.”

Substantial evidence supported findings by the NLRB that an employer’s transportation coordinator unlawfully interrogated and threatened the captain of its truck drivers in violation of Section 8(a)(1), ruled the Tenth Circuit, in a 2-1 decision. The Board properly found that the transportation coordinator’s statements constituted threats of current and future job loss if the drivers organized and would have “reasonably tend[ed] to interfere with, restrain or coerce” the employee in the exercise of his Section 7 rights. Further, the court found that substantial evidence supported the Board’s finding that the employer violated Section 8(a)(3) by refusing to reinstate striking drivers after receiving their unconditional offer to return to work. The court did grant the employer’s petition for review challenging the Board’s finding that it violated Section 8(a)(1) of the NLRA by unlawfully interrogating another employee. Judge Eid filed a separate opinion concurring in part and dissenting in part (3484 Inc. v. NLRB, Nos. 24-9511 and 24-9525 (10th Cir. May 12, 2025)).

A film producer created two corporations to produce two Hallmark movies, 3484 Inc. and 3486 Inc. The productions shared personnel, including the line producer, unit production manager, transportation coordinator, and 13 drivers. Most of the drivers were members of a union, Local 222.

3484 movie production. In April 2021, before production on the 3484 movie was set to begin, drivers employed by 3484 contacted a business agent for Teamsters Local 399, a union chartered specifically to represent workers in the film industry. The 3484 drivers wanted to discuss the prospect of negotiating a union contract.

The line producer for 3484 heard that the drivers were considering organizing. The producer called a driver on the 3484 production and asked her if she had heard anything about drivers organizing. The employee responded that she was not aware of any organizing efforts. After the call the producer texted the employee, asking her to keep their conversation confidential.

Ultimately, the union decided not to try and organize the drivers at the 3484 movie production. However, two months later, in early June 2021, the same drivers reached out to Local 399 again wanting to discuss organizing the drivers on the 3486 movie production. On June 10 and 11, a Local 399 union representative emailed the owner of the production companies asking to discuss a union contract for the 3486 drivers.

The owner contacted the 3486 transportation coordinator and directed him to speak with the union. Filming on the 3486 movie was scheduled to begin on Sunday, June 13. The transportation coordinator called the captain of the 3486 drivers and asked if he knew who had contacted Local 399. He then warned the captain that production on the 3486 movie and future Hallmark productions would move to Canada if the drivers organized.

After the captain reported the call to Local 399, the union representative texted the transportation coordinator and asked him to confirm the threat to relocate production. The transportation coordinator confirmed the threat. Thereafter, the union filed an unfair labor practice charge alleging that the employer violated Section 8(a)(1) of the NLRA by “threatening to retaliate against employees if they joined or supported a union” and “interrogating employees about their union activities.”

The charge also alleged that the employer violated Section 8(a)(5) by “refus[ing] to recognize the union as the collective bargaining representative of its employees” and “refus[ing] to bargain in good faith with the union as the collective bargaining representative of its employees.”

Drivers’ strike. Filming on the 3486 movie was set to begin on June 13. On that same date, the union sent the employer a proposed collective bargaining agreement. The employer responded that production would move to Canada if the drivers organized. Thereafter, the drivers voted to strike. At the direction of the union representative, the drivers moved the movie trucks and equipment to a hotel parking lot.

That day, the owner emailed the union representative claiming that the drivers had stolen 3486 property by moving it to the hotel. He called the police to report the alleged theft. Later that day, some 3486 equipment was recovered and returned.

On June 14 the drivers picketed by the set while filming on the 3486 movie continued. They picketed on and off until the last day of filming. The employer hired two replacement drivers and hired additional drivers as needed.

Offer to return to work. On June 17, the principal officer of Local 222 emailed the owner on behalf of the striking drivers. The email notified the owner that the drivers were ending the strike and made “an unconditional offer for all striking employees to return back to work.” The employer did not reinstate any of the striking drivers. Shortly thereafter, Local 399 filed another unfair labor practice charge, alleging that the employer violated Section 8(a)(3) by “refus[ing] to recall [employees] from layoff because the [employees] joined or supported a labor organization and in order to discourage union activities or membership.”

Complaint allegations. In February 2022, the NLRB General Counsel filed a consolidated complaint alleging that 3484 violated Section 8(a)(1) when the producer questioned the employee about union activity and asked her to keep their conversation confidential. As for 3486, the complaint alleged violations of Section 8(a)(1) when the transportation coordinator questioned the captain about union activity and threatened that film production would shut down if employees unionized and alleged a violation of Section 8(a)(3) when 3486 refused to reinstate the drivers conducting an unfair labor practice strike despite their unconditional offer to return to work.

ALJ orders. An administrative law judge found for the Board on all charges. He recommended: (1) ordering the employers to cease and desist from committing unfair labor practices; and (2) ordering 3486 to rescind the terminations of the striking drivers, award them backpay, and make them whole “for any other direct or foreseeable pecuniary harms” suffered as a result of their unlawful discharges. After the NLRB affirmed the ALJ’s findings, the employers petitioned for review of the Board’s order. The Board filed a cross-petition for enforcement of its order.

Unlawful interrogation. As an initial matter, The Tenth Circuit agreed with the employer that substantial evidence did not support the Board’s finding that the line producer unlawfully interrogated the driver. The Board affirmed the ALJ’s finding that “under all of the circumstances,” the questioning of the employee would reasonably tend to coerce her so that she would feel reasonably obligated to disclose any knowledge she had of union activity and that she would also reasonably feel restrained from exercising rights protected by Section 7.

However, the Tenth Circuit disagreed with the Board that the exchange was “coercive in nature.” The producer’s question was a broad inquiry about union activity, did not ask the driver about specific individuals or about the driver’s involvement in organizing efforts. And the conversation lasted about a minute. Because the appeals court could not say that there was substantial evidence that the producer’s question about union activity could have reasonably coerced the driver with respect to the exercise of her Section 7 rights, it set aside the Board’s finding.

Similarly, the appeals court concluded that there was not substantial evidence to support the Board’s finding that the producer’s follow-up request to keep the conversation confidential violated Section 8(a)(1) by infringing on the driver’s Section 7 rights.

3486’s violations of Section 8(a)(1). On the other hand, the appeals court disagreed with the employer’s contention that substantial evidence did not support the Board’s findings that the transportation coordinator unlawfully interrogated and threatened the drivers’ captain in violation of Section 8(a)(1). Although Section 8(c) allows employers to communicate their views about unionization or unions to their employees, such communications may not contain a “threat of reprisal or force or promise of benefit.” Here, the Board could properly find that the transportation coordinator’s statements constituted threats of current and future job loss if the drivers organized and would have “reasonably tend[ed] to interfere with, restrain or coerce” the employee in the exercise of his Section 7 rights.

Moreover, the appeals court found substantial evidence that the transportation coordinator was a supervisor and rejected 3486’s defense that his comments were not attributable to the company because he was not a “supervisor” or “agent” of 3486 under the NLRA.

3486’s violation of Section 8(a)(3). The appeals court also found substantial evidence to support the Board’s finding that the employer violated Section 8(a)(3) by refusing to reinstate the striking drivers after receiving their unconditional offer to return to work. Section 8(a)(3) makes it an unfair labor practice for an employer to discriminate against employees for engaging in protected union activity, such as a strike. However, the motive for the strike and the behavior of the strikers makes a difference.

Whether striking employees are entitled to immediate reinstatement depends on the cause of the strike. Here, 3486 contended that the strike was an economic strike, not an unfair labor practice strike, and therefore the striking drivers were not entitled to reinstatement because it hired replacement drivers. However, the appeals court determined that it must affirm the Board’s decision because there was substantial evidence that the striking drivers were motivated, at least in part, by 3486’s commission of unfair labor practices. Moreover, the union and the drivers repeatedly identified the strike as an unfair labor practice strike.

Strike misconduct. Rejected also was 3486’s contention that its refusal to reinstate the striking drivers did not violate Section 8(a)(3) because each of the striking drivers engaged in misconduct by moving 3486 equipment after striking. The appeals court was not persuaded that the drivers engaged in serious misconduct while on strike. For strike misconduct to be “serious,” it “must have had a tendency to coerce other employees in the exercise of their protected rights,” including the right to refrain from engaging in concerted activities.

Here, 3486 made no argument that the strikers’ moving of the vehicles and equipment was “serious” misconduct. Further, there was no evidence in the record that any of the striking drivers knowingly moved vehicles and equipment without authorization. The equipment vendors requested that the drivers return their equipment to Salt Lake City rather than abandoning it on set. So long as an individual driver had no knowledge of the impropriety, the driver has not intentionally or deliberately engaged in wrongdoing and cannot be deprived of the right to reinstatement.

Board procedures. Finally, the employers took issue with the process by which the Board made its findings. They argued that the Board’s “in-house” adjudication violated their constitutional rights to a jury trial “before an independent, life-tenured judge” under Article III and the Seventh Amendment. However, the appeals court determined that it lacked jurisdiction to consider these constitutional challenges because they were not raised before the Board.

Partial concurrence and partial dissent. Judge Eid dissented from the portion of the appeals court’s finding that 3486’s transportation coordinator unlawfully threatened an employee by stating that future productions would move to Canada if drivers unionized. In the dissent’s view, the statement did not threaten retaliatory action by the employer, but rather described decisions about future productions that would be made by Hallmark, the third-party company that commissioned the productions. The dissent also disagreed with the majority’s conclusion that the appeals court lacked jurisdiction to consider 3486’s challenge to the Board’s remedy. According to the dissent, the court may still exercise jurisdiction where the Board acts outside the scope of its authority.

The cases are Nos. 24-9511 and 24-9525.

Judge: Hartz, H.

Attorneys: Oliver J. Dunford (Pacific Legal Foundation) for 3484, Inc. Eric Weitz for NLRB.

Companies: 3484 Inc. and 3486, Inc.

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