3484, INC.; 3486, INC., Petitioners/Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. AMERICAN FEDERATION OF LABOR-CONGRESS OF INDUSTRIAL ORGANIZATIONS, Amicus Curiae.
Nos. 24-9511 & 24-9525
United States Court of Appeals for the Tenth Circuit
May 12, 2025
PUBLISH. Petition for Review from an Order of the National Labor Relations Board (NLRB Nos. 27-CA-278463, 27-CA-278592 & 27-CA-279117)
Eric Weitz (Kira Dellinger Vol, Jennifer A. Abruzzo, Peter Sung Ohr, Ruth E. Burdick, and David Habenstreit with him on the brief) of the National Labor Relations Board, Washington, D.C., for Respondent/Cross-Petitioner.
Matthew Ginsburg and Maneesh Sharma, filed an Amicus Curiae brief in support of National Labor Relations Board.
Before HARTZ, EID, and FEDERICO, Circuit Judges.
3484, Inc. and 3486, Inc. (the Employers) seek review of a decision and order of the National Labor Relations Board (NLRB or Board). The Board found that the Employers committed unfair labor practices in violation of the National Labor Relations Act (NLRA or the Act) § 8(a)(1), (3),
Exercising jurisdiction under
I. BACKGROUND
A. Factual Background
Unless otherwise indicated, the following facts are not disputed on appeal. Film producer David Wulf created two Utah corporations, 3484 and 3486, to produce two Hallmark movies. The articles of incorporation for 3484 were filed in January
The productions shared personnel. Jennifer Ricci served as the line producer for 3484 and the unit production manager for 3486. In both roles Ricci was responsible for overseeing the day-to-day operations of the production, which included hiring crew members, managing the budget, and keeping things on track. Brett Miller was the transportation coordinator for both productions. He was responsible for transporting vehicles, trailers, and equipment required for the movies, along with hiring and managing a crew of drivers. 3484 employed 13 drivers; nine of those drivers plus a new hire also worked on the later 3486 production. Most of the drivers were members of the International Brotherhood of Teamsters Local 222 based in Salt Lake City, Utah.
In April 2021, before production on the 3484 movie was set to begin, drivers employed by 3484 contacted Joshua Staheli, a business agent for Teamsters Local 399 based in Los Angeles, California. Local 399 is a craft union chartered specifically to represent workers in the film industry. The 3484 drivers wanted to discuss the prospect of negotiating a union contract.
Ricci heard that the 3484 drivers were considering organizing. She called April Hanson, a driver on the 3484 production whom she had known for ten years and asked her if she had heard anything about drivers organizing. Hanson responded
Staheli ultimately decided not to organize the 3484 drivers because he felt that they had minimal bargaining power. But the same drivers reached out to Staheli again two months later, in early June 2021. This time they wanted to discuss organizing the drivers on the 3486 production. Staheli asked Local 399 representative Lindsay Dougherty to contact Wulf about bargaining with the union. On June 10 and 11, Dougherty emailed Wulf, asking to discuss a union contract for the 3486 drivers. Also, Staheli tried to contact Ricci on June 11.
Wulf informed transportation coordinator Miller that Dougherty had contacted him. He directed Miller to speak with the union, “figure something out,” and “take care of it.” Pet‘rs App., Vol. I at 48–49. Time was of the essence, as filming on the 3486 movie was scheduled to begin on Sunday, June 13.
Still on June 11, Miller called driver Roy Brewer, who was the captain of the 3486 drivers. He asked Brewer if he knew who had called Local 399. Miller then warned Brewer that production on the 3486 movie and future Hallmark productions would move to Canada if the drivers organized.
After the call Brewer reported the exchange to Staheli. Staheli texted Miller and asked him to confirm the threat to relocate production, which Miller did without hesitation. That evening, on the basis of the exchange between Miller and Brewer, Staheli filed an unfair-labor-practice charge with the Board‘s Denver Regional Office. The charge alleged that 3486 violated
The following day, June 12, the drivers transported the trucks, trailers, vans, and equipment to St. George, Utah, where filming was set to begin the next morning. Staheli drove to St. George to continue his efforts to obtain a union contract for the drivers. That day, he emailed Brewer a standard list of unfair labor practices for him to share with the other drivers so that they could look for additional violations.
The morning of June 13 Staheli sent Wulf a proposed collective bargaining agreement that would allow the drivers to obtain health insurance and retirement benefits. Staheli and two Local 222 business agents were at the first filming location—the Leeds Market in Leeds, Utah. While filming was underway, Staheli talked with many of the drivers.
Ricci, as unit production manager for 3486, was also by the drivers in the parking lot. Staheli spoke with her about the possibility of obtaining a union contract for the drivers. Ricci briefly stepped away and called Wulf. After speaking with Wulf, she reported to Staheli that she would have to get back to him about the
Shooting at the Leeds Market finished around noon. As the production crew was getting ready to move the trucks, trailers, equipment, vans, and crew to the next filming location (a pecan farm), Staheli asked Brewer to call the drivers together to vote on a strike. Staheli told the drivers that 3486 had committed unfair labor practices, that he anticipated that 3486 would continue to commit unfair labor practices, and that he and Local 399 were going to help the drivers strike in response. Staheli also told them that he wanted them to vote on whether to strike.
Following Staheli‘s direction, the drivers voted. Each wrote either “yes” or “no” on a piece of paper and dropped it into a baseball cap. All nine drivers voted to strike. Staheli walked over to Ricci to inform her that the drivers had voted to strike, and he texted Miller the same news.
The trucks, trailers, vans, and other equipment were leased to 3486 by a variety of different entities, including a company owned by Wulf. After the strike commenced, Staheli and Brewer had conversations with vendors to see what they wanted the drivers to do with their equipment, since the drivers would not be moving the equipment to the next filming location while on strike. Each contacted vendor asked for its equipment to be returned rather than abandoned at its present location. Staheli directed the drivers to move the equipment to the parking lot of the Best Western hotel where the drivers were staying. The drivers did not move various vehicles and equipment that they recognized they did not have permission to take.
On June 14 the drivers picketed by the set at the pecan farm while filming on the 3486 movie continued. They chanted demands for employee benefits and held signs reading, “Stop the War on Workers” and “Honk.” Id. at 671. The drivers picketed on and off until the last day of filming. 3486 hired two replacement drivers and hired additional drivers as needed.
On June 17 (day five of the strike), Spencer Hogue, the principal officer of Local 222, emailed Wulf on behalf of the striking drivers. The email notified Wulf that the drivers were ending the strike and made “an unconditional offer for all striking employees to return back to work.” Id. at 610.
3486 did not reinstate any of the striking drivers. In a letter addressed to Staheli and Hogue, legal counsel for 3486 alleged that the drivers vandalized company equipment and property during the strike and asserted that this “serious misconduct . . . negates any right to reinstatement.” Id. at 676. Shortly thereafter, Staheli filed another unfair-labor-practice charge with the Board, alleging that 3486 violated
B. Procedural Background
In February 2022 the Board‘s General Counsel filed a consolidated complaint against 3484 and 3486. The complaint alleged that 3484 violated
On February 27, 2023, the ALJ issued his recommended decision and order, finding for the Board on all charges. As remedies, 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. Id., Vol. III at 773.
The Employers filed exceptions to the ALJ‘s decision. But a three-member panel of the Board affirmed the ALJ‘s rulings, findings, conclusions, and remedies, with
II. DISCUSSION
A. Standard of Review
In determining whether to grant enforcement of a Board order or uphold a final order of the Board, we “uphold the NLRB‘s factual findings if they are supported by substantial evidence in the record as a whole.” NLRB v. F&A Food Sales, Inc., 202 F.3d 1258, 1260 (10th Cir. 2000) (internal quotation marks omitted); see
1. Unlawful Interrogation of Hanson
3484 first argues that substantial evidence does not support the Board‘s finding that line producer Ricci unlawfully interrogated driver Hanson. We agree.
The NLRA “prohibits employers and unions from engaging in certain unfair labor practices.” Starbucks Corp. v. McKinney, 602 U.S. 339, 342 (2024) (brackets and internal quotation marks omitted). Section 8(a)(1),
The Board affirmed the ALJ‘s finding that “under all of the circumstances,” Ricci‘s questioning of Hanson “would reasonably tend to coerce Hanson so that she would feel reasonably obligated to disclose any knowledge she had of union activity
But we fail to discern any meaningful distinction between this case and Cannady v. NLRB, 466 F.2d 583, 585–87 (10th Cir. 1972). In that case, the owner of a clay-target manufacturing plant spoke with a part-time employee on the telephone. See id. at 585–86. The plant owner, who “had heard about some [union authorization] cards floating around,” asked the employee “if there had been any union activity at the plant.” Id. at 586. The employee “responded that she was unaware of a union although she had signed an authorization card.” Id. The plant owner then offered the employee a full-time job at the plant and the employee accepted. See id. At the conclusion of the exchange, the plant owner also asked the employee to obtain a sample union authorization card. See id. The employee testified that she said she could not comply with the request. See id. at 585. The Board found that the questioning constituted an unlawful interrogation in violation of
The Board attempts to brush Cannady aside as a “fact-specific denial of enforcement” that “does not require a different result.” Resp‘t Br. at 14. We are not convinced. The context here is quite similar to that in Cannady. In a telephone conversation with driver Hanson, Ricci said that she had heard that the drivers on the 3484 production were considering organizing and asked Hanson if she knew anything about the 3484 transportation department trying to obtain a union contract: “are you hearing of . . . transpo[rtation] flipping the show?”2 Pet‘rs App., Vol. I at 89. Hanson responded that she was not aware of any organizing efforts. The conversation lasted a minute.
As in Cannady, Ricci‘s question was a broad inquiry about union activity. She did not ask Hanson about specific individuals or about Hanson‘s involvement in organizing efforts. And the conversation was far from prolonged. Given our precedent, we cannot say that there is substantial evidence that Ricci‘s question about union activity could have reasonably coerced Hanson with respect to the exercise of her § 7 rights. We therefore set aside the Board‘s finding.
We do think, however, that there is substantial evidence to support the Board‘s finding that Ricci‘s follow-up request to keep the conversation confidential violated
Although “businesses have a substantial and legitimate interest in maintaining the confidentiality of private information,” this interest is “outweighed” by the § 7 rights of employees to discuss “their terms of employment” and “working conditions.” Double Eagle Hotel & Casino v. NLRB, 414 F.3d 1249, 1259–60 (10th Cir. 2005) (internal quotation marks omitted) (hotel‘s confidential-information policy violated
Immediately after Ricci ended her call with Hanson, she texted Hanson, “Please don‘t say anything I just said . . . Thanks!” Pet‘rs App., Vol. II at 594. The Board found that this instruction “infringed on Hanson‘s Section 7 right to discuss
3484 does not dispute that Ricci gave this instruction to Hanson, nor does it offer any “business justification” for it. See First Am. Enters., 2020 WL 1911428, at *3–4. Its sole argument is that the Board affirmed the ALJ‘s finding despite its being “based on an error.” Pet‘rs Br. at 23 (internal quotation marks omitted). 3484 is correct that the ALJ made a factual error, but the Board did not rely on it. The ALJ found that Ricci‘s confidentiality instruction “creat[ed] an impression among [3484] employees that their union activities were under surveillance” and concluded that the instruction constituted “another unlawful interrogation.” Pet‘rs App., Vol. III at 763, 772. The Board, however, amended the ALJ‘s finding to “delete [this] inadvertent reference to impression of surveillance,” determining that “there is no allegation or finding that [3484] created an impression of surveillance.” 3484, Inc., 2024 WL 1012781, at *1 n.2. The Board further said that the ALJ “incorrectly applied an interrogation analysis” and that it opted to “rely on a different rationale,” concluding that the request was an unfair labor practice because it “constituted an unlawful confidentiality instruction.” Id. at *1. Thus, the Board expressly recognized the factual error by the ALJ and offered its own reasoning to support its ruling that Ricci‘s confidentiality instruction was an unfair labor practice. 3484 does not, and could not, complain of this procedure of the Board. Under
3484‘s reliance on Lafayette Park Hotel, 326 N.L.R.B. 824, 826 (1998), is misplaced. 3484 correctly quotes that opinion for the proposition that a confidentiality instruction with “no more than a speculative effect on employees’ Section 7 rights” cannot “warrant a finding of an 8(a)(1) violation.” Id. But at issue in that case was an employee-handbook rule prohibiting hotel employees from “[d]ivulging Hotel-private information to employees or other individuals or entities that are not authorized to receive that information.” Id. The Board concluded that employees would not “reasonably read this rule as prohibiting discussion of wages and working conditions among employees or with a union“; instead, employees would reasonably understand that the rule was designed to protect the hotel‘s interest in maintaining the confidentiality of “guest information, trade secrets, contracts with suppliers, and a range of other proprietary information.” Id. In contrast, there is no ambiguity about what Ricci wanted to keep secret.
3486 argues there is not substantial evidence to support the Board‘s findings that transportation coordinator Miller unlawfully interrogated and threatened driver Brewer in violation of
We have already noted that an employer commits an unlawful interrogation when the questioning “could reasonably coerce or intimidate the employee with regard to union activities.” Presbyterian/St. Luke‘s Med. Ctr., 723 F.2d at 1475 (internal quotation marks omitted). Although
After Wulf directed Miller to “take care of” the union matters, Miller called Brewer. Pet‘rs App., Vol. I at 49. The ALJ found that Miller “had a high-level of authority over the drivers” and was the “highest-ranking driver official.” Id., Vol. III at 765. Miller testified that he asked Brewer, “[D]o you know who called the union[?]” Id., Vol. I at 46. During his testimony Miller acknowledged that his concern was finding out which driver had called Local 399.
Miller testified that he told Brewer something to the effect of: “if the union comes in to organize these drivers, the production is going to go to Canada.” Id. at 47. Miller also warned Brewer that future production work for the drivers would be
On this evidence the Board could properly find that Miller‘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” Brewer in the exercise of his § 7 rights. Okla. Fixture Co., 79 F.3d at 1034; see NLRB v. Thompson Transp. Co., 406 F.2d 698, 702 (10th Cir. 1969) (“It is a basic violation of § 8(a)(1) for an employer to interfere with employee organizational activity by a coercive threat to close his plant.“); Tellepsen Pipeline Servs. Co. v. NLRB, 320 F.3d 554, 561–62 (5th Cir. 2003) (“Section 8(a)(1) of the Act makes it an unfair labor practice for an employer to threaten job loss or the closure of a work site in the event of unionization.“); NLRB v. Gen. Fabrications Corp., 222 F.3d 218, 230 (6th Cir. 2000) (“An employer‘s threat to close down if the company unionizes is a hallmark violation of the NLRA.” (internal quotation marks omitted)); NLRB v. La. Mfg. Co., 374 F.2d 696, 702 (8th Cir. 1967) (“Of course, it is an unfair labor practice for an employer to threaten employees with moving the plant and the loss of jobs as a result of their acceptance of a union.“). If, as in NLRB v. Automotive Controls Corp., 406 F.2d 221, 223–24 (10th Cir. 1969), the record showed that Miller had provided some explanation for moving the production other than animus against the union, this
3484 does not dispute that Miller made these comments to Brewer. But it insists that “the Board again found an unlawful interrogation based on a lone, innocuous question.” Pet‘rs Br. at 24. Miller‘s question, however, was more pointed than Ricci‘s broad question about organizing activity. The inquiry could reasonably appear to be aimed at identifying the ringleader of the drivers’ organizing campaign for the purpose of discouraging that person from continuing his efforts or, worse, retaliating against that person. In any event, the questioning was potentially more coercive since it was accompanied by Miller‘s warning of job loss. See, e.g., McLane/Western, Inc., 723 F.2d at 1457 (upholding the Board‘s unlawful interrogation finding where the supervisor asked “which employees supported the union” and threatened that the company “would close their doors and move the company away rather than deal with the union” (internal quotation marks omitted)); Presbyterian/St. Luke‘s Med. Ctr., 723 F.2d at 1475 (upholding unlawful interrogation finding where supervisor asked employee whether she had solicited other employees regarding union matters and warned her that “she might be putting her job in jeopardy“); NLRB v. Okla-Inn, 488 F.2d 498, 501 (10th Cir. 1973) (questioning was coercive where supervisor asked employee “whether she had decided which way she would vote [in the unionization election]” and threatened that if she voted for the union she “would lose her job“).
[A]ny individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
D. 3486‘s Violation of § 8(a)(3)
3486 argues that there is not substantial evidence to support the Board‘s finding that the company violated § 8(a)(3) by refusing to reinstate the striking drivers after receiving their unconditional offer to return to work. We cannot agree.
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. See
1. Unfair-Labor-Practice Strike
Whether striking employees are entitled to immediate reinstatement depends on the cause of the strike. See Facet Enters., Inc. v. NLRB, 907 F.2d 963, 976 (10th Cir. 1990). An “economic” strike occurs when “employees strike in support of bargaining demands concerning wages, hours and working conditions,” while an “unfair labor practice” strike occurs when “employees strike in protest of employer conduct found subsequently to be an unfair labor practice.” Id. at 976 (internal quotation marks omitted). “If an employer hires permanent replacements during an economic strike, striking workers are entitled only to preferential reinstatement as positions become available.” Harberson, 810 F.2d at 980. But “[e]mployees who engage in an unfair labor practice strike[] are guaranteed a more favorable remedy“: “upon an unconditional offer to return to work[,] unfair labor practice strikers are entitled to reinstatement with back pay, even if the employer has hired replacements in the interim.” Facet Enters., Inc., 907 F.2d at 976.
3486 contends that the strike was an economic strike, not an unfair-labor-practice strike, and therefore the striking drivers were not entitled to reinstatement because 3486 hired replacement drivers. It asserts that “the union representatives planned to use the work stoppage . . . for leverage . . . to exact economic
This is not a frivolous argument. On the evidence in this record, a reasonable person could have found that the drivers would not have gone on strike simply to protest the conversations that constituted unfair labor practices. But the only issue before us is whether there was substantial evidence to support the Board‘s ruling. And it is “settled that a strike is an unfair labor practices strike even though there may have been causes for it in addition to the employer‘s unfair labor practices.” Head Div., AMF, Inc. v. NLRB, 593 F.2d 972, 979 (10th Cir. 1979). Indeed, “[a] strike which is motivated, even in part, by an employer‘s unfair labor practices is an unfair labor practice strike.” Capitol Steel & Iron Co. v. NLRB, 89 F.3d 692, 698 (10th Cir. 1996); see, e.g., Head Div., AMF, Inc., 593 F.2d at 980-81 (upholding the Board‘s finding that a strike was an unfair-labor-practice strike even though the Board acknowledged that “a major cause of the strike was displeasure with the course of contract negotiations” because there was still substantial evidence that employee concern over unfair labor practices was “an operative cause of the strike“).
We must affirm the Board‘s decision because there is substantial evidence that the striking drivers were motivated, at least in part, by 3486‘s commission of unfair labor practices. Staheli filed the unfair-labor-practice charge against 3486 two days before the drivers voted to strike. He testified that the day before the strike he called
Although 3486 insists that the testimony of Staheli and Brewer was “entirely self-serving” and cannot support the Board‘s finding, Pet‘rs Br. at 30, the ALJ found their testimony to be credible, and the Board found “no basis for reversing [those] findings.” 3484, Inc., 2024 WL 1012781, at *1 n.1. “[W]e will not disturb the NLRB‘s determinations of witness credibility or lack thereof except in rare circumstances.” Albertson‘s, Inc. v. NLRB, 161 F.3d 1231, 1236 (10th Cir. 1998). Self-serving testimony is commonplace, not rare. In the absence of more, much more, we cannot set aside the credibility determinations.
3486 also argues that the Board simply adopted the ALJ‘s finding that the strike was an unfair-labor-practice strike without “provid[ing] any reasoning of its own.” Pet‘rs Br. at 30. But we have long recognized that “the Board is not required to restate everything [in its decision and order] if it finds that the [ALJ‘s] conclusions
2. Strike Misconduct
Turning from the debate over how to classify the strike, 3486 makes one final objection. It argues that its refusal to reinstate the striking drivers did not violate § 8(a)(3) because each of the nine striking drivers engaged in misconduct by moving 3486 equipment after striking. 3486 asserts that the striking drivers “never received approval from Wulf or anyone else associated with the 3486 Production to move the equipment.” Pet‘rs Br. at 36.4 We are not persuaded.
Although an employer is ordinarily required to reinstate unfair-labor-practice strikers immediately upon receiving their unconditional offer to return to work, that is not the case with respect to striking employees “who engage in serious misconduct while on strike.” Medite of N.M., Inc. v. NLRB, 72 F.3d 780, 790 (10th Cir. 1995). Employees who have “personally engaged” in serious misconduct “lose the
The ALJ rejected 3486‘s misconduct argument as “vague, uncertain, and failing to contain adequate specific evidence” of individual drivers committing misconduct, and found that the drivers’ “conduct both picketing on June 14 at the Pecan Farm and gathering and moving vehicles and equipment did not fall outside of protection under the Act.” Pet‘rs App., Vol. III at 770. The Board affirmed the ALJ‘s finding that “the record does not reflect the predicate misconduct by specific strikers”
3486‘s misconduct argument fails for several reasons. First, the company makes no argument that the strikers’ moving of the vehicles and equipment was “serious” misconduct. As previously noted, under the definition of serious adopted by this court, the misconduct must have “a tendency to coerce [nonstriking] employees in the exercise of their protected rights.” Medite of N.M., Inc., 72 F.3d at 790 (internal quotation marks omitted). Yet 3486 merely asserts that the Board has recognized that strikers have been deemed to forfeit their right to reinstatement when “‘they seized the employer‘s property.‘” Pet‘rs Reply Br. at 8 (quoting Gen. Tel. Co. of Mich., 251 N.L.R.B. 737, 739 (1980)).
But even if such conduct could constitute serious misconduct regardless of whether it tended to coerce or intimidate nonstriking employees into relinquishing
3486 also argues that the equipment vendors had no right to request the premature return of their equipment because the production company still had the right to possess the equipment under the lease agreements it had signed. But even if the owners lacked authority (no lease agreement was ever produced), 3486 representatives on site did not oppose moving the vehicles and equipment, so the drivers had no way of knowing that they were moving anything without authorization.7 It is not enough that removal of the vehicles and equipment may have been highly improper. So long as an individual driver had no knowledge of the
In sum, substantial evidence supports the Board‘s finding.
E. Challenges to Board‘s Procedures
In addition to challenging the Board‘s findings, the Employers take issue with the process by which the Board made those findings. They argue 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. Pet‘rs Br. at 52. But we lack jurisdiction to consider these constitutional challenges because they were not raised before the Board.
Section 10(e) of the NLRA states that “[n]o objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”
The Employers do not dispute that they failed to raise these constitutional challenges before the Board. But they assert that there is a “futility exception” to § 10(e). Pet‘rs Br. at 63 (internal quotation marks omitted). They contend that it would have been pointless to raise these challenges below because neither the ALJ
For support, the Employers rely on the Supreme Court‘s opinion in Carr v. Saul, 593 U.S. 83 (2021). At issue in that case was “whether petitioners forfeited their” challenges that “ALJs [of the Social Security Administration (SSA)] who originally heard their cases were not properly appointed under the Appointments Clause of the U.S. Constitution” because they failed to make these arguments “first to their respective ALJs.” Carr, 593 U.S. at 85. The Court declined to impose an exhaustion requirement because raising these claims before the administrative agency would have been futile, reasoning that “Petitioners assert purely constitutional claims about which SSA ALJs have no special expertise and for which they can provide no relief.” Id. at 93.
But there was no statute or regulation in Carr that required the petitioners to first raise their challenges during administrative proceedings; instead, the exhaustion requirement that the Court considered would have been “judicially created.” Id. at 88; see NLRB v. Starbucks Corp., 125 F.4th 78, 87-88 (3d Cir. 2024) (distinguishing Carr on this ground). Section 10(e), however, is quite different. It operates as a “non-waivable jurisdictional bar to consideration of objections not presented to the Board,” Pub. Serv. Co. of N.M. v. NLRB, 692 F.3d 1068, 1076 (10th Cir. 2012) (Gorsuch, J.), “depriv[ing] appellate courts of jurisdiction to consider issues not raised during the proceedings before the Board.” NLRB v. Cmty. Health Servs., 812 F.3d 768, 775 n.4 (10th Cir. 2016) (internal quotation marks omitted). Because § 10(e) expressly
That said, we recognize that we may excuse the failure to urge an objection before the Board in “extraordinary circumstances.”
F. Challenges to Board‘s Remedy
We also lack jurisdiction to consider 3486‘s argument that the Board did not have the authority under the NLRA to award the drivers compensation for “‘any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms, suffered as a result of the[ir] unlawful discharges.‘” Pet‘rs Br. at 38 (quoting 3484, Inc., 2024 WL 1012781, at *4). 3486 failed below to adequately raise the objection to the Board‘s grant of that remedy.
The Employers filed 17 exceptions to the ALJ‘s order. In Exception 14, 3486 objected:
To the ALJ‘s remedy that In accordance with Thryv, Inc., 372 NLRB No. 22 (2022), Respondent 3486, Inc. shall compensate each of the nine drivers for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful termination of their employment, including reasonable search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center,
supra. (ALJD, p.48, lines 22-29). In support thereof, Respondent relies on the record and accompanying Brief in Support of Exceptions.
Pet‘rs App., Vol. III at 783.
On occasion we have held that even a “terse” exception may suffice to preserve an issue in certain circumstances. Coreslab, 100 F.4th at 1143; see Pub. Serv. Co. of N.M., 692 F.3d at 1073-74. But there are limits. 3486 did not state, or even hint, that one of the grounds for its objection was the absence of statutory authority for the remedy. The company‘s blanket objection “[t]o the ALJ‘s remedy” merely copied and pasted the disputed portion of the ALJ‘s order without offering an explanation why the ALJ‘s suggested remedy was improper. This was not enough. Pet‘rs App., Vol. III at 783; see Wyman Gordon Pa., LLC v. NLRB, 836 F. App‘x 1, 5 (D.C. Cir. 2020) (“Simply saying ‘I object,’ without explaining why, is not sufficient to fairly present and preserve an issue before the Board.“). And we note that the Board did not address the issue now being raised by 3486, clearly signaling that it did not perceive any such challenge by the company. See Pub. Serv. Co. of N.M., 692 F.3d at 1074 (that the Board “chose to address the two objections it felt it could discern lurking” suggested the exceptions were sufficiently raised before the Board); Coreslab, 100 F.4th at 1144 (same).
To be sure, 3486‘s brief in support of the exceptions did list Exception 14 in two of the headings. But the discussions under those headings addressed only
And for the same reasons discussed in the previous section, we reject 3486‘s extraordinary-circumstances argument, which was not raised until its reply brief and is therefore waived. See In re: Motor Fuel Temperature Sales Pracs. Litig., 872 F.3d at 1110 n.4.
The dissent contends that we nevertheless have jurisdiction to consider this issue, invoking our statement in Coreslab, 100 F.4th at 1144, that “we may exercise our jurisdiction over a challenge despite a party‘s failure to object before the agency . . . where the decision at issue clearly demonstrates the Board exceeded its statutory authority.” But we cannot say at this point in the proceedings that there has been such excess. In Coreslab the Board‘s order imposed a specific remedy, whose legitimacy we could examine. Here, in contrast, the Board has merely stated a general proposition, and even expressed some doubt whether there would be a factual basis for any unusual remedy. In this circumstance we cannot say that the remedy to be imposed by the Board will “clearly” be in excess of its authority. If the Employers later wish to challenge any remedy ultimately imposed as beyond Board authority, they can pursue relief at that time. See Home Beneficial Life Ins. Co. v. NLRB, 172 F.2d 62, 63 (4th Cir. 1949).
We GRANT 3484‘s petition for review challenging the Board‘s finding that it violated § 8(a)(1) of the NLRA by unlawfully interrogating Hanson, but we DENY the remainder of the Employers’ petition. Accordingly, we GRANT the Board‘s cross-application for enforcement except insofar as it is predicated on its finding that Hanson was unlawfully interrogated. We GRANT the Board‘s unopposed motions to lodge nonrecord materials. We REMAND to the Board for further proceedings consistent with this opinion.
24-9511 & 24-9525, 3484, Inc. & 3486, Inc. v. NLRB
EID, J., concurring in part and dissenting in part.
Like the majority, I would leave many of the Board‘s findings undisturbed.1 But I disagree with the majority about whether substantial evidence supports the Board‘s finding that Brett Miller, a supervisor acting on behalf of 3486, unlawfully threatened an employee by stating that future productions would move to Canada if drivers unionized. In my view, Miller‘s statement did not threaten retaliatory action by Wulf or 3486, but rather described decisions about future productions that would be made by Hallmark, the third-party company that commissioned Wulf‘s productions. Accordingly, I would deny enforcement of the finding that Miller‘s statements constituted unlawful threats.
I also disagree with the majority‘s conclusion that we lack jurisdiction to consider 3486‘s challenge to the Board‘s remedy—an argument that 3486 admittedly did not raise below. Section 10(e) of the NLRA generally bars our jurisdiction to consider an issue that a party failed to first raise before the Board. But even in such a circumstance, we may still exercise jurisdiction where the Board acts outside the scope of its authority.
Here, the Board‘s order requiring 3486 to compensate the striking drivers for any “direct or foreseeable pecuniary harms” is patently beyond its statutory authority under the NLRA. That monetary relief is the prototypical form of tort-like legal damages. But
For these reasons, I respectfully concur in part and dissent in part.
I.
I begin by addressing the Board‘s finding that Miller, acting as a supervisor of 3486, unlawfully threatened Roy Brewer, a 3486 driver and transportation captain, when Miller stated that future productions would move to Canada if drivers unionized. In my view, that finding is unsupported by substantial evidence.
Section 8(a)(1) of the NLRA 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 of the NLRA],” including the rights to self-organization, collective bargaining, and other union-related activities.
At the same time, an employer is free to express “any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.‘” Gissel, 395 U.S. at 618. Indeed, an employer “may even make a prediction as to the precise effects he believes unionization will have on his company,” so long as the prediction is “carefully phrased on the basis of objective fact” regarding the “probable consequences [of unionization] beyond his control or to convey a management decision already arrived at.” Id.
In NLRB v. Automotive Controls Corp., for instance, this Court held that an employer‘s statement that it would move locations if employees unionized—but “[n]ot as long as [the business] continue[d] to operate on a profit margin“—was not an unlawful threat. 406 F.2d 221, 224 (10th Cir. 1969). Because the employer‘s statement did not suggest that “adverse consequences [would] be deliberately inflicted” as retaliation for unionization, we concluded that the statement was instead
Applying those principles here, Miller‘s statement to Brewer was not a threat, but rather a mere “prediction as to the precise effects” that Miller and Wulf “believe[d] unionization [would] have” on future productions. Id. As the record demonstrates, Miller‘s statement expressed only that Hallmark––the client that commissioned the 3486 production––would “pack up and go to Canada” if drivers unionized. A.R. Vol. I at 47; A.R. Vol. II at 604. Miller did not state that Wulf himself, as 3486‘s owner and director, would decide to move to Canada. Thus, Miller‘s statement did not suggest that Wulf would take action “on his own initiative” in retaliation for the drivers’ unionization. Gissel, 395 U.S. at 618. Rather, Miller‘s statement did nothing more than describe the “probable consequences [of unionization] beyond his [or Wulf‘s] control.” Id.
To be sure, in one factually similar context, the Board held that an employer unlawfully threatened employees by stating that it would move its operations to Canada if the employees unionized or went on strike. Dentech Corp., 294 N.L.R.B. at 928. But the statements at issue in Dentech were markedly different from those here. In Dentech, both the company‘s president and a company supervisor repeatedly told employees that the president himself would “move the company back to Canada” if
The majority brushes aside this distinction, concluding instead that Miller‘s statements constituted retaliatory threats. Maj. Op. at 17–19. The majority‘s reasoning, however, conflates the question of whether Miller threatened Brewer with the question of whether Miller interrogated him. Id. at 18–19. Specifically, the majority suggests that both Miller‘s statement to Brewer and Miller‘s question to Brewer—asking Brewer if he knew who had called the union—reinforced the coerciveness of each other, thereby making each independently unlawful. Id.
To be clear, I agree with the majority that Miller‘s question, by itself, constituted an unlawful interrogation. And I do not doubt that the analysis of Miller‘s questioning shares some overlap with the analysis of his statement, particularly when considering the coerciveness of each in the entire context of Miller and Brewer‘s interactions. But the majority does not cite any authority for the proposition that unlawfully coercive questioning necessarily transforms an employer‘s separate statements into unlawfully coercive threats. In fact, our cases suggest to the contrary: for instance, in Automative Controls Corp., we concluded that an employer did not threaten employees merely by stating that the business would move locations if employees unionized, notwithstanding a separate, unchallenged finding that the employer unlawfully interrogated employees. 406 F.2d at 222–24. And there we emphasized that, although coerciveness is determined “in light of the totality of employer communications,” courts also must proceed from “the premise that employers’ statements that are not coercive” on their own “are protected by
Thus, the fact that Miller unlawfully interrogated Brewer does not necessarily mean that Miller‘s separate statement constituted an unlawful threat. Even considering the statement in context, the record demonstrates that Miller was only communicating the “probable consequences [of the drivers’ unionization] beyond his [or Wulf‘s] control.” Gissel, 395 U.S. at 618. Accordingly, I would hold that substantial evidence does not support the Board‘s findings that Miller unlawfully threatened Brewer, and I would therefore deny enforcement of that finding.
II.
I next address our jurisdiction to consider 3486‘s argument that the Board exceeded its statutory authority by ordering it to compensate the striking drivers for “‘any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms, suffered as a result of the[ir] unlawful discharges.’” Aplt. Br. at 38 (quoting 3484, Inc., 373 N.L.R.B. No. 28, 2024 WL 1012781, at *4).
The majority concludes that we lack jurisdiction to consider this argument because 3486 failed to adequately raise it before the Board. Maj. Op. at 33–35 & nn.8–9. I disagree. To explain why, I begin by describing the legal framework for preservation and jurisdiction in an appeal from a Board decision.
Under the
That statutory language, we have explained, “deprives appellate courts of jurisdiction to consider issues ‘not raised during the proceedings before the Board.’” NLRB v. Cmty. Health Servs., 812 F.3d 768, 775 n.4 (10th Cir. 2016) (quoting Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665 (1982)); see Pub. Serv. Co. of N.M., 692 F.3d at 1073 (Gorsuch, J.) (“[E]ven mustering the appropriate
But even where a party fails to adequately raise and preserve an objection, we may still exercise jurisdiction to consider the argument if an exception to
Indeed, the Supreme Court has even recognized a similar exception to the
That reasoning extends perforce to the jurisdictional requirement of preservation. When the Board acts “in excess of its delegated powers,” id. at 188, its action is ultra vires and therefore void. And “it would be passing strange for an ultra vires agency action to be better insulated from judicial review than one issued under lawful authority.” Teamsters Loc. Union No. 455 v. NLRB, 765 F.3d 1198, 1201 (10th Cir. 2014) (Gorsuch, J.). Consistent with that principle, the Supreme Court has explained that when an appellate court reviews any Board action under
Thus, even assuming that 3486 failed to adequately raise its objection to the Board‘s remedy, we may still exercise jurisdiction to review that argument if the remedy exceeded the Board‘s statutory authority. As I explain below, that is the case
III.
The Board is a limited-authority agency that may only act to the extent Congress authorizes. But Congress has never authorized the Board to award the remedy it ordered here—namely, tort-like legal damages. Indeed, in enacting the
The remedy the Board awarded in this case clearly exceeds that statutory boundary. The Board ordered 3486 to “compensate each of the nine [striking] drivers for any . . . direct or foreseeable pecuniary harms incurred as a result of the unlawful termination of their employment, including reasonable search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings.” A.R. Vol. III at 833. That remedy—no matter how the Board labels it—constitutes an award of compensatory and consequential damages. The Board has no power to award such relief.3
Generally, the Board‘s power to craft and impose remedies for violations of the
Our deference ends, however, when the Board‘s choice of remedy “is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the [NLRA],” id. at 1546 (quoting Va. Elec. & Power Co. v. NLRB, 319 U.S. 533, 540 (1943)), or when the remedy exceeds a “‘rational and consistent’ interpretation of the Board‘s statutory authority,” Coreslab, 100 F.4th at 1142–43 (quoting NLRB v. United Food & Com. Workers Union, Loc. 23, AFL-CIO, 484 U.S. 112, 123 (1987)).
To determine whether the Board‘s remedy exceeds its authority, the place to start is the
But the Board‘s remedial discretion is not unlimited. First, “the Board‘s authority to remedy unfair labor practices is expressly limited by the requirement that its orders ‘effectuate the policies of the [NLRA].’” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984) (quoting
Again, the text of the
That understanding makes even more sense when considering the two types of “affirmative action” that the statute expressly authorizes, both of which are equitable in nature.
The same is true of the latter remedy——awards of back pay. Although back pay awards “somewhat resemble” money damages that “compensat[e] for private injury,” the remedy is still equitable in nature. Va. Elec. & Power Co., 319 U.S. at 543. Indeed, the Supreme Court has consistently characterized an award of back pay as “an equitable remedy, a form of restitution.” Curtis v. Loether, 415 U.S. 189, 196 (1974) (emphasis added) (discussing back pay awards in the similar context of Title VII). That is because an award of back pay is based only on the amount of money that was unlawfully withheld from the employee as a result of the employer‘s unfair labor practice. Id.; see Va. Elec. & Power Co., 319 U.S. at 543 (noting that a back pay award “restore[s] to the employees in some measure what was taken from them because of the [employer‘s] unfair labor practices“). Thus, although an award of back pay consists of monetary relief that compensates an injured employee, the remedy is merely “an incident to equitable relief“——it supplements the reinstatement order, allowing the injured employee to both return to work and receive the pay that they would have received but for the employer‘s unfair labor practice. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937); see Russell, 356 U.S. at 645 (noting that back pay awards “may incidentally provide some compensatory relief to victims of unfair labor practices,” but they do not “constitute an exclusive pattern of money damages for private injuries“).4
To sum up, the only two types of “affirmative action” that the
Another clue as to the scope of the Board‘s remedial power comes from
Consistent with that understanding—and looking to the equitable remedies that the
The Board itself has recognized this limitation. Past Board decisions have acknowledged that the Board “is not empowered to remedy tortious acts” and that it “does not award tort remedies,” but rather awards only those remedies that are necessary to “vindicate the purposes of the [NLRA].” Freeman Decorating Co., 288 N.L.R.B. 1235, 1235 n.2 (1988); see Teamsters, Loc. 85 (Viking Delivery Serv., Inc.), 186 N.L.R.B. 462, 474 (1970); cf. Mass. Comm‘n Against Comm‘n v. Loc. Union No. 12004, 2004 WL 1852966, at *31 (NLRB July 28, 2004) (noting a “general impression that the NLRA‘s protections end where tortious acts begin“). Even the Board, then, has long viewed its remedial power as an equitable one.
To be sure, the Board has occasionally ordered monetary awards designed to compensate for losses that an employee suffers as a result of unfair labor practices, even beyond back pay. See Thryv, Inc. & Int‘l Brotherhood of Elec. Workers, Loc. 1269, 372 NLRB No. 22, 2022 WL 17974951, at *10–13 (Dec. 13, 2022), order vacated in part on other grounds, 102 F.4th 727 (5th Cir. 2024) (collecting examples). And those monetary awards have encompassed “pecuniary harms that were either a direct, or an indirect but foreseeable, consequence of [an employer‘s] unfair labor practice.” Id. at *11.
But when the Board has granted monetary relief for pecuniary losses other than back pay, it has generally done so with respect to discrete monetary losses that are directly tied to the employment contract or the employee‘s wages——like the loss of employment benefits——and only when the link between the unfair labor practice and the loss is especially clear. See, e.g., Va. Elec. & Power Co., 319 U.S. at 540–41 (enforcing order requiring employer to refund mandatory union dues that were deducted from workers’ wages); NLRB v. Louton, Inc., 822 F.2d 412, 413–14 (3d Cir. 1987) (enforcing order awarding lost health insurance benefits as part of back pay award); Lou‘s Transp., Inc. v. NLRB, 945 F.3d 1012, 1026 (6th Cir. 2019) (enforcing
Taken together, all of this confirms what the
B.
For decades, the Board has abided that limitation. Then, in 2022, the Board changed course, holding for the first time that, in all cases “in which [its] standard remedy would include an order for make-whole relief,” the Board will now also “expressly order that the [employer] compensate affected employees for all direct or foreseeable pecuniary harms” suffered as a result of the employer‘s unfair labor practice. Thryv, 2022 WL 17974951 at *9 (emphasis original).
Unsurprisingly, the Board in Thryv insisted that its newly contemplated remedy is not a form of compensatory or consequential damages. Id. at *16. The Board asserted, moreover, that the remedy is not “akin to those [remedies] awarded in tort proceedings,” even though it “may ‘somewhat resemble compensation for
The Board‘s statements are little more than window dressing. In reality, the Board‘s new remedy constitutes the very sort of tort-like damages that the Board is without power to award. Thryv itself makes this clear. Although the Board there declined “to enumerate all the pecuniary harms that may be considered direct or foreseeable,” the Board nevertheless set out an expansive list of examples that would be included “at a minimum.” Thryv, 2022 WL 17974951 at *20 & n.13. According to the Board, the new remedy encompasses “out-of-pocket medical expenses, credit card debt, or other costs” that an employee may incur “simply in order to make ends meet.” Id. at *15. It also covers other pecuniary harms, such as “interest and late fees on credit cards, or penalties if [an employee] must make early withdrawals from her retirement account in order to cover her living expenses” after an unlawful termination. Id. And it even permits compensation for an employee‘s “loan or mortgage payments,” as well as any “transportation or childcare costs.” Id.
That list looks like something out of a torts treatise. Each of those examples is a quintessential basis for compensatory or consequential damages, awarding an employee money for losses that are not directly tied to an unfair labor practice, rather than for lost wages or benefits that were unlawfully withheld. See, e.g., Restatement
In that way, the Board‘s new remedy fits squarely within the bedrock definition of compensatory and consequential damages, which have long been understood to encompass monetary awards “ordered to be paid to [ ] a person as compensation for loss or injury,” including, for consequential damages, “[l]osses that do not flow directly and immediately from an injurious act but that result indirectly from the act.” Damages, Black‘s Law Dictionary (12th ed. 2024). Indeed, the Board‘s own description of the remedy——that it is “designed to undo the effects of an unfair labor practice,” Res. Br. at 33—is remarkably similar to the way the Supreme Court has described ordinary compensatory damages. State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408, 416 (2003) (“Compensatory damages ‘are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant‘s wrongful conduct.’” (quoting Cooper Indus. v. Leatherman Tool Grp., 532 U.S. 424, 432 (2001)).
Thus, try as the Board might, its attempt to skirt the “damages” label is nothing more than an end-run around that long-held understanding of the nature of compensatory and consequential damages. If monetary relief “for all direct or foreseeable pecuniary harms,” Thryv, 2022 WL 17974951 at *9 (emphasis in original), were not a form of a compensatory and consequential damages, it is entirely unclear what else that relief could be. Before us, the Board offers no answer. Although the Board insisted in Thryv that “‘consequential damages is a term of art . . . [that] fails to accurately describe the [Board‘s new] make-whole remedial policy,” its decision there offered no other way to describe the remedy. See id. at *13–14. Instead, the Board simply cloaked the remedy in language that vaguely referred to “effectuating the purpose” of the
Perhaps wary of that fact, the Board also argues before us that its remedial authority under the
But that view is equally misplaced. For one thing, Phelps Dodge dealt with distinctions between different types of equitable relief——specifically, whether there was a difference between reinstatement of a wrongfully fired employee versus reinstatement of an employee who had wrongfully not been hired——not a distinction between legal and equitable relief. See id. at 187–88. Thus, Phelps Dodge did not hold that the
Accordingly, in my view, the
Because the Board‘s remedy here requires 3486 to compensate the striking drivers for such harms, the order exceeds the Board‘s statutory authority under the
IV.
For these reasons, I concur in part and dissent in part.
Notes
In circumstances more analogous to those present here, several courts have applied the exception to hear challenges to the Board when the Board has “travel[led] outside the orbit of its authority.” Noel Canning v. NLRB, 705 F.3d 490, 498 (D.C. Cir. 2013), aff‘d on other grounds, 573 U.S. 513 (2014) (internal quotation marks omitted). In those cases the courts held that the Board had no authority to issue an order because three of its five members had been appointed in violation of the Constitution‘s Recess Appointments Clause,
And one of the courts that had applied the exception declined to apply it when the issue related to whether Board ALJs were unconstitutionally protected from removal by the President. See Starbucks Corp., 125 F.4th at 87. The court distinguished the issue on the ground that, under recent Supreme Court authority, such challenges to removal protections “do[] not call into question the ALJ‘s or the Board‘s core authority to act.” Id. This distinction seems consistent with the authority establishing the “outside the orbit” exception. The Supreme Court in NLRB v. Cheney California Lumber Co., 327 U.S. 385, 388 (1946), without referencing the extraordinary-circumstances exception, declared that a court may decline to enforce a Board order “if the Board has patently traveled outside the orbit of its authority so that there is legally speaking no order to enforce.” We think it questionable that the Board‘s allegedly improper use of in-house ALJs rises to that level. Cf. Smith v. Bd. of Governors of Fed. Reserve Sys., 73 F.4th 815, 823 (10th Cir. 2023) (declining to consider former bank employees’ unpreserved Appointments Clause challenge to the authority of the Office of Financial Institution Adjudication ALJ who adjudicated their case and observing generally that “structural challenges have no special entitlement to review on appeal from the agency” (internal quotation marks omitted)).