05/13/2025: 10th Circuit Mostly Affirms Hallmark Christmas Movie Violations
Region finds employer eliminated and then recreated an essentially identical position to move a worker out of the bargaining unit.
3484, Inc., et al. V. NLRB, 24-9511 (10th Circuit)
This case involves a petition for review by two film production companies (3484, Inc. and 3486, Inc., collectively "the Employers") challenging a National Labor Relations Board (NLRB) decision finding they committed unfair labor practices in violation of the National Labor Relations Act (NLRA). The NLRB cross-applied for enforcement of its order.
Background
Film producer David Wulf created two Utah corporations to produce Hallmark movies: 3484 for "Christmas at the Madison" and 3486 for "Love at the Pecan Farm." Wulf owned both companies, which shared personnel including line producer/unit production manager Jennifer Ricci and transportation coordinator Brett Miller.
In April 2021, drivers employed by 3484 contacted Teamsters Local 399 about unionizing, prompting Ricci to call driver April Hanson to inquire about organizing efforts. After the call, Ricci texted Hanson asking her to keep their conversation confidential.
In June 2021, drivers reached out to Local 399 again about organizing the 3486 production. Local 399 representatives contacted Wulf to discuss a union contract. Wulf directed Miller to "figure something out." Miller called driver Roy Brewer, asked who had contacted the union, and warned that production would move to Canada if drivers unionized.
When filming began, the drivers voted to strike. After a four-day strike, the drivers made an unconditional offer to return to work, but 3486 refused to reinstate them, claiming they had engaged in misconduct during the strike.
Court's Analysis
The Tenth Circuit reviewed whether substantial evidence supported the NLRB's findings that:
3484 violated Section 8(a)(1) when Ricci questioned Hanson about union activity and asked her to keep their conversation confidential.
3486 violated Section 8(a)(1) when Miller questioned Brewer about union activity and threatened that film production would relocate if employees unionized.
3486 violated Section 8(a)(3) by refusing to reinstate drivers conducting an unfair labor practice strike despite their unconditional offer to return.
The court held that substantial evidence supported all the Board's findings except for its determination that 3484 unlawfully interrogated Hanson. The court found Ricci's brief question about union activity insufficient to constitute coercive interrogation under circuit precedent.
However, the court upheld the finding that Ricci's text asking Hanson to keep their conversation confidential violated Section 8(a)(1) by infringing on Hanson's right to discuss union-related conversations with other employees.
The court also affirmed that Miller unlawfully interrogated Brewer by asking who contacted the union, and that Miller's warning about production moving to Canada constituted an unlawful threat. The court rejected 3486's argument that Miller wasn't a supervisor whose actions could be attributed to the company.
Regarding the striking drivers, the court upheld the Board's finding that they conducted an unfair labor practice strike (rather than an economic strike) and were therefore entitled to reinstatement. The court found substantial evidence that the drivers were motivated, at least in part, by 3486's unfair labor practices. The court also rejected 3486's argument that the drivers engaged in misconduct by moving equipment after striking.
The court declined to consider the Employers' constitutional challenges to the Board's procedures and 3486's challenge to the Board's statutory authority to award certain remedies, finding these arguments were not preserved for appellate review as required by Section 10(e) of the NLRA.
Judge Eid concurred in part and dissented in part, disagreeing with the majority regarding Miller's threat about production moving to Canada and the Board's remedial authority.
Significant Cases Cited
NLRB v. Cheney California Lumber Co., 327 U.S. 385 (1946): Established that courts may decline to enforce a Board order if the Board has "patently traveled outside the orbit of its authority."
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Distinguished between permissible employer predictions about unionization effects and impermissible threats of retaliation.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): Clarified that a Board award of back pay is "an incident to equitable relief" and does not violate the Seventh Amendment.
Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951): Established that "Congress has imposed on [courts] responsibility for assuring that the Board keeps within reasonable grounds."
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Ended Chevron deference, holding that courts must exercise independent judgment in deciding whether an agency acted within its statutory authority.
Geisinger Lewistown Hospital, 06-UC-347253 (Regional Election Decision)
In this case, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW) filed a petition to clarify an existing bargaining unit at Geisinger Lewistown Hospital to include the newly-created job classification of MRI Safety Assistant. The employer argued that this position should instead be included in a bargaining unit represented by SEIU Healthcare Pennsylvania.
The key issue was whether the MRI Safety Assistant position performs work historically performed by the USW-represented Radiology Assistant position, which was eliminated in June 2024. The Regional Director found that it does, and therefore the MRI Safety Assistant position properly remains in the USW bargaining unit.
Facts
Geisinger Lewistown Hospital is part of the larger Geisinger Health System and employs approximately 1,000 employees. USW has represented a unit of technical employees (including Radiology Assistants) since 1981, while SEIU has represented service and maintenance employees since 1971.
In April 2024, the employer notified USW that the Radiology Assistant position (held by Nichole Smith) was being eliminated. Simultaneously, the employer created the MRI Safety Assistant position and informed Smith that it was the only position available to her. After Smith applied, she was given the position without further interview or training.
USW filed a grievance alleging that moving Smith to the MRI Safety Assistant position violated the collective bargaining agreement, arguing that the duties were still technical work and her job duties were not changing. The employer denied the grievance, claiming the MRI Safety Assistant position belonged in the "non-professional" SEIU unit.
Comparison of Positions
The evidence showed substantial similarities between the positions:
The job descriptions contained many identical duties, including greeting patients, assisting with paperwork, transporting patients, verifying schedules, observing patients, and assisting with supplies and emergencies.
Smith testified that there were no "major differences" between the work she did as a Radiology Assistant and as an MRI Safety Assistant. She continued to work with the same equipment (MRI machine and cardiac monitors), interact with the same patients, and complete the same paperwork.
Smith's uniform, schedule, and basic responsibilities remained unchanged, though she received a ten-cent raise and now reported to the head of the MRI department rather than the Operations Manager of the Radiology Department.
Legal Analysis
The Regional Director applied the standard from Premcor rather than a community of interest test. Under Premcor, when "a new classification is performing the same basic functions as a unit classification historically had performed," the new classification "is properly viewed as remaining in the unit rather than being added to the unit by accretion."
The Regional Director found that Smith continued to perform the same work in the MRI Safety Assistant position that she had performed as a Radiology Assistant. The work was done on the same machinery and with the same patients. The only significant differences were the job title, supervision, and slight pay increase.
The Regional Director distinguished this case from AT Wall Co. and Walt Disney Parks and Resorts, where the Board rejected applying the Premcor standard. Unlike those cases, no new machinery or work processes were introduced that necessitated the creation of the MRI Safety Assistant position.
The Regional Director also noted the Board's significant deference to collective bargaining history, especially in health care settings with non-conforming units under the Board's Health Care Rule. Placing the MRI Safety Assistant position in the SEIU unit would effectively sever it from a long-standing bargaining unit, which would be counter to Board policy as stated in Crittenton Hospital and Kaiser Foundation Hospitals.
Significant Cases Cited
Premcor, Inc., 333 NLRB 1365 (2001): Established that when a new job classification performs the same basic functions as a unit classification historically performed, it remains in that unit rather than being added by accretion.
AT Wall Co., 361 NLRB 695 (2014): Distinguished that Premcor does not apply when new employees work with different equipment in a separate production line with separate work hours and training.
Walt Disney Parks and Resorts, 367 NLRB No. 80 (2019): Held that Premcor does not apply when new job classification has substantially different functions despite some surface similarities.
Developmental Disabilities Institute, Inc., 334 NLRB 1166 (2001): Applied Premcor where a new position performed the same educational function as a represented classification despite some differences in how the work was performed.
Crittenton Hospital, 328 NLRB 879 (1999): Affirmed the Board's deference to established collective-bargaining history in healthcare settings with non-conforming units.