Confidentiality Instructions and Threats of Business Relocation as Unfair Labor Practices: 3484, Inc. v. NLRB

Introduction

In 3484, Inc. v. National Labor Relations Board, 10th Cir. (May 12, 2025), the Tenth Circuit reviewed a consolidated Board order finding that two Utah film‐production corporations (3484, Inc. and 3486, Inc.) had violated Section 8(a)(1) and (3) of the National Labor Relations Act (“NLRA”). 3484 was accused of interrogating an employee about union activity and then instructing her to keep that conversation confidential. 3486 was charged with interrogating and threatening drivers about union organization, refusing to reinstate them after an unfair‐labor‐practice strike, and refusing to bargain with the union. The case raised three central questions:

When does a supervisor’s question about union activity constitute an unlawful “interrogation” under NLRA § 8(a)(1)?
Can a confidentiality instruction—asking an employee not to disclose a union‐related discussion—violate Section 8(a)(1)?
Does threatening to relocate production to Canada if workers unionize or strike constitute an unlawful coercive threat?

Summary of the Judgment

Exercising jurisdiction under 29 U.S.C. § 160(e) & (f), the Court held:

Substantial evidence did not support the finding that 3484 unlawfully interrogated an employee by broad inquiry alone about union organizing.
Substantial evidence did support the Board’s finding that 3484 unlawfully issued a confidentiality instruction—asking the employee not to discuss the call—which infringed on her § 7 rights.
Substantial evidence supported the Board’s finding that 3486 unlawfully interrogated and threatened a driver when a supervisor warned that productions (and thus jobs) would move to Canada if the drivers unionized.
Substantial evidence supported the Board’s finding that 3486 violated § 8(a)(3) by refusing to reinstate drivers after they engaged in a protected unfair‐labor‐practice strike and offered to return to work.
The Court declined to consider certain constitutional and statutory‐authority challenges because they were not preserved before the Board.
Remedies were upheld except for the interrogation finding as to 3484; the order requiring both companies to cease and desist and 3486 to make the drivers whole was enforced.

Analysis

1. Precedents Cited

Cannady v. NLRB, 466 F.2d 583 (10th Cir. 1972): Refused enforcement of interrogation finding where a broad question about union activity was deemed non‐coercive.
Presbyterian/St. Luke’s Med. Ctr. v. NLRB, 723 F.2d 1468 (10th Cir. 1983): Held that interrogation is unlawful if it “tends to be coercive”—courts look at how the employee reasonably understood the questions.
Double Eagle Hotel & Casino v. NLRB, 414 F.3d 1249 (10th Cir. 2005): Confidential‐information policies lose to § 7 rights when they bar discussion of wages, hours, or union matters.
NLRB v. Oklahoma Fixture Co., 79 F.3d 1030 (10th Cir. 1996): Reprisals or threats of reprisal to discourage union activity violate § 8(a)(1).
Facet Enterprises, Inc. v. NLRB, 907 F.2d 963 (10th Cir. 1990): Distinction between economic strikes and unfair‐labor‐practice strikes determines reinstatement rights.

2. Legal Reasoning

Interrogation vs. prediction of outcomes: Section 8(a)(1) bans questions that “reasonably tend to coerce” union rights. Broad, one‐sentence inquiries may be too innocuous to coerce (Cannady). But factual context matters.

Confidentiality Instructions: The Court recognized that while employers have a legitimate interest in confidentiality, that interest is outweighed when employees’ § 7 rights to discuss wages and union activities are at stake (Double Eagle; First American Enterprises, 2020 WL 1911428).

Threats of Relocation: Employers may predict economic consequences beyond their control, but may not threaten action they control as retaliation. A supervisor’s warning that he would relocate production if workers unionized crosses into coercion (Automotive Controls; Gissel Packing; NLRB v. Thompson Transportation).

Unfair‐Labor‐Practice Strikes: Workers striking in protest of an employer’s unfair labor practices are entitled to reinstatement with back pay upon unconditional return offers—even if replacements have been hired. The Court declined to reclassify the strike as merely economic where unfair‐labor‐practice concerns were an operative cause (Head Div., AMF, Inc.; Capitol Steel & Iron Co.).

3. Impact

Employers must carefully distinguish between information legitimately protected and union‐related conversation. A confidentiality instruction can violate § 8(a)(1) if it prevents employees from discussing union matters or filing Board charges.
Supervisors may not cloak threats of retaliation behind “predictions” of client actions; warnings about relocation as a response to unionization will be deemed coercive if they appear under the employer’s control.
The decision reaffirms the broad protection for unfair‐labor‐practice strikers: once the Board finds an unfair‐labor‐practice strike, strikers must be reinstated with back pay, absent serious personal misconduct.
Employers should train supervisors on the subtle line between permissible “opinions” and coercive statements regarding union activity.

Complex Concepts Simplified

Section 7 Rights: All employees may organize, bargain collectively, form unions, and engage in concerted activity for mutual aid or protection.
Section 8(a)(1) Unfair Labor Practices: Employers cannot interfere with, restrain or coerce employees in exercising their § 7 rights. That includes unlawful “interrogations,” “threats,” or confidentiality rules shutting down discussion.
“Substantial Evidence” Review: A court upholds Board findings if a reasonable mind could accept the evidence to support them—courts do not retry credibility unless no reasonable basis exists.
Economic vs. Unfair‐Labor‐Practice Strike: An economic strike is over wages/conditions—strikers can be permanently replaced. An unfair‐labor‐practice strike is to protest employer violations—strikers must be reinstated with back pay once the strike ends.

Conclusion

3484, Inc. v. NLRB clarifies two emerging principles: first, that confidentiality instructions barring employees from discussing union‐related conversations violate § 8(a)(1), and second, that supervisors may not threaten to relocate business as a response to union organizing. The ruling reemphasizes that broad, one‐sentence questions about union activity may escape the coercion threshold, while context‐based inquiries and threats will not. It also reinforces the strong remedial rights of unfair‐labor‐practice strikers to reinstatement with back pay. Employers and their agents should carefully review interaction policies and training programs to ensure compliance with these guardrails around employee rights to discuss, organize, and protest unfair labor practices.