Clarifying Coercion and Remedies under the NLRA: Confidentiality Instructions, Threats, and Unfair-Labor-Practice Strikes

Introduction

In NLRB v. 3484, Inc., Nos. 24-9511 & 24-9525 (10th Cir. May 12, 2025), the Tenth Circuit clarified important aspects of employer conduct prohibited by the National Labor Relations Act (NLRA). 3484, Inc. and 3486, Inc. (“the Employers”) challenged multiple findings by the National Labor Relations Board (NLRB). The court was asked to decide (1) when a supervisor’s questions or confidentiality requests amount to unlawful interrogations under § 8(a)(1); (2) what constitutes an unlawful threat of reprisal or force; (3) whether a work stoppage was an unfair-labor-practice strike entitling participants to immediate reinstatement; and (4) the scope of the Board’s remedial authority. With jurisdiction under 29 U.S.C. § 160(e)–(f), the court upheld most Board findings but set aside the finding as to one interrogation and declined to consider challenges to certain remedies and procedures not timely preserved.

Summary of the Judgment

The Tenth Circuit’s opinion, written by Judge Hartz, can be summarized as follows:

The Board’s finding that 3484, Inc. unlawfully interrogated driver Jennifer Hanson about union activity was reversed. The question was too broad and brief to be coercive as a matter of law under this court’s precedent.
The Board’s alternative finding—that 3484 unlawfully instructed Hanson to keep their conversation confidential—was upheld. Confidentiality restraints infringed § 7 rights and fall outside § 8(c) protection.
3486, Inc. was found to have unlawfully interrogated and threatened driver Roy Brewer in violation of § 8(a)(1) by asking about union organizing and warning that future productions would move to Canada.
The drivers’ work stoppage was properly classified as an unfair-labor-practice strike. Because they made an unconditional offer to return, 3486’s refusal to reinstate them violated § 8(a)(3), despite hiring replacement drivers.
Challenges to (a) the Board’s in-house adjudication by Administrative Law Judges and (b) its broad remedial order awarding “any direct or foreseeable pecuniary harms” were held unreviewable for lack of preservation before the Board.
A majority refused to reach questions of constitutional separation of powers and the Board’s remedial authority, though a partial concurrence dissented on the remedy issue.

Analysis

Precedents Cited

Cannady v. NLRB (10th Cir. 1972) – held that not all interrogations about union activity are unlawfully coercive; broad, brief inquiries may be innocuous.
McLane/Western, Inc. v. NLRB (10th Cir. 1983) – recognized that interrogation about union sympathies can violate § 8(a)(1) if coercive.
Double Eagle Hotel & Casino v. NLRB (10th Cir. 2005) – confidentiality policies may violate § 8(a)(1) when they bar discussion of wages or union matters.
NLRB v. Gissel Packing Co. (1969) – predictions of consequences of unionization are protected so long as not phrased as threats “of reprisal or force.”
NLRB v. Automotive Controls Corp. (10th Cir. 1969) – forecasts of plant relocation if unionized were deemed protected predictions rather than threats.
Facet Enterprises, Inc. v. NLRB (10th Cir. 1990) – distinguished economic strikes from unfair-labor-practice strikes for reinstatement rights under § 8(a)(3).
Harberson v. NLRB (10th Cir. 1987) – held that permanent replacements are permitted in an economic strike, with limited reinstatement rights.
Medite of N.M., Inc. v. NLRB (10th Cir. 1995) – recognized that strikers committing “serious misconduct” may lose reinstatement protections.

Legal Reasoning

The court applied the substantial-evidence standard under 29 U.S.C. § 160(e)–(f), asking whether a reasonable mind could accept the record support for each Board finding. On § 8(a)(1) interrogations, the court reiterated that “questions which, when viewed as the employee must have understood them, could reasonably coerce” are unlawful. Comparing Cannady and Presbyterian/St. Luke’s, it held Hanson’s brief, broad inquiry noncoercive but her confidentiality instruction separately unlawful.

On threats, the court found Miller acted as a supervisor under § 2(11) by exercising independent judgment in hiring, directing, and even recommending discipline for drivers. His statements that Hallmark productions would “move to Canada” if drivers unionized—delivered as warnings during organizing activity—were deemed coercive threats violating § 8(a)(1).

Under § 8(a)(3), the court recognized that an unfair-labor-practice strike (motivated at least in part by unlawful conduct) entitles strikers to immediate reinstatement with backpay upon an unconditional offer. Crediting testimony by Organizing Agent Staheli and driver Brewer, the court held there was substantial evidence that the strike was indeed such a protest. The “serious misconduct” exception failed for lack of evidence that specific strikers knowingly mishandled equipment.

Finally, the majority invoked § 10(e) to decline review of constitutional and remedial-authority challenges not preserved before the Board. A partial concurrence would have reached and struck the Board’s extravagant damages remedy as beyond its equitable powers under § 10(c).

Impact

This decision has several practical and doctrinal effects:

It underscores that not every question about union activity is coercive—courts will closely compare questions’ scope, context, and duration against Cannady and McLane/Western.
It affirms that confidentiality instructions are their own unfair-labor-practice category when they restrict § 7 discussions or Board access, following Double Eagle and subsequent Board rulings.
It clarifies that threats couched as conditional predictions remain protected unless phrased as the employer’s own adverse reprisal—drawing on Automotive Controls and Gissel.
It reinforces the test for unfair-labor-practice strikes versus economic strikes, preserving strikers’ reinstatement rights where organizing-related misconduct is at least a partial cause.
It spotlights the limits of § 10(e) preservation: challenges to Board process and broad remedies must be raised below or else risk forfeiture on appeal.

Complex Concepts Simplified

Substantial evidence: Enough relevant proof that a reasonable mind could uphold an administrative finding.
§ 8(a)(1) interrogation: Employer questions about union activity that “reasonably tend to coerce” employees in exercising § 7 rights.
§ 8(c) protected communications: Employers may express views on unionizing so long as they do not threaten reprisal or promise a benefit.
Supervisor under the NLRA: Any person who, using independent judgment, can hire, discipline, assign, or recommend such actions.
Economic vs. unfair-labor-practice strike: Economic strikes over terms give limited reinstatement rights; ULP strikes protest unlawful conduct and require immediate full reinstatement upon offer.
§ 10(e) preservation rule: Courts will not consider objections on appeal that weren’t timely raised before the NLRB, absent extraordinary circumstances.

Conclusion

NLRB v. 3484, Inc. sharpens the boundaries of protected employer speech and unlawful coercion under the NLRA. It confirms that:

Brief, unspecific inquiries about unionizing may be innocent, yet any instruction to keep such discussions secret violates § 8(a)(1).
Threats of reprisal must come from the employer’s own initiative; predictions of third-party decisions remain lawful unless recast as the employer’s own threats.
Strikers entitled to ULP-strike status retain full reinstatement rights even if replacements are hired, absent individualized misconduct.
The Board’s broad remedial or constitutional challenges must be preserved below or else face forfeiture under § 10(e).

Collectively, the opinion balances employees’ § 7 rights against employers’ § 8(c) freedoms and underscores the careful judicial scrutiny of both coercive conduct and administrative procedures. The decision will guide labor practitioners, employers, and the NLRB in evaluating what questions, warnings, and remedies cross the line from permissible advocacy into unlawful interference.