Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
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 2021 to produce “Christmas at the Madison,” and the articles of incorporation for 3486 were filed in April 2021 to produce “Love at the Pecan Farm.” Wulf was the sole owner and officer of both corporations.
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 10 years and asked her if she had heard anything about drivers organizing. Hanson responded that she was not aware of any organizing efforts. The conversation lasted a minute. After the call, Ricci texted Hanson, asking her to keep their conversation confidential.
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, Daugherty 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 Daugherty had contacted him. He directed Miller to speak with the union, “figure something out,” and “take care of it.” Time was of the essence, as filming on the 3486 movie was scheduled to begin on 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 National Labor Relations Board’s Denver Regional Office. The charge alleged that 3486 violated the National Labor Relations Act 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 3486 violated the act 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.” Staheli forwarded Wulf an email from the board confirming its receipt of the charge.
3484 and 3486 sought review of a decision and order of the NLRB finding that they committed unfair labor practices in violation of the NLRA and ordered relief. 3484 and 3486 argued that the board’s findings weren’t supported by substantial evidence and that the board’s procedures and remedies weren’t authorized by the act or violated their constitutional rights.
Exercising jurisdiction, the 10th Circuit Court of Appeals held that substantial evidence supported all the board’s findings, except for its finding that 3484 unlawfully interrogated an employee about union activity. It also held that it lacked jurisdiction to consider the employers’ constitutional challenges and 3486’s challenge to the board’s statutory authority because these arguments weren’t preserved for appellate review.
WildEarth Guardians, et al. v. U.S. Forest Service, et al.
Petitioners-Appellants WildEarth Guardians and Western Watersheds Project appealed the district court’s denial of their Administrative Procedure Act petition against the U.S. Forest Service. Guardians challenged an underlying forest service decision to open new domestic sheep grazing allotments, called the Wishbone Allotments, in the Rio Grande National Forest in Colorado. Guardians argued the allotments pose a high risk to local populations of Rocky Mountain bighorn sheep, which are vulnerable to catching diseases from domestic sheep.
The forest service’s decision to open the Wishbone Allotments in 2017 followed two previous decisions in 2013 and 2015 to vacate larger grazing allotments which the forest service determined posed an unacceptable risk to bighorn sheep populations. Those decisions relied on the “risk of contact model,” a modeling tool the forest service uses to determine the likelihood a grazing allotment will risk domestic sheep coming into contact with bighorn sheep. In the previous decisions, the model’s determination of a high risk of contact was determinative. But the forest service’s 2017 decision authorizing the Wishbone Allotments eschewed the results of the risk of contact model — which again predicted a high risk of contact — and asserted that outside factors such as the geography of the allotments, the length of the bighorn sheep grazing season and the use of best management practices by herders would mitigate the risk.
Guardians objected to the 2017 decision before the forest service, arguing that the use of local factors to change the result of the model was unsupported by data or scientific consensus. The forest service approved the Wishbone Allotments over Guardians’ objection. Guardians next sued in federal district court under the APA and the National Environmental Policy Act, contending the forest service’s creation of the allotment was arbitrary and capricious. The district court determined the forest service didn’t violate NEPA. Guardians appealed.
The 10th Circuit agreed with Guardians that the forest service acted arbitrarily and capriciously in approving the Wishbone Allotments. First, the court explained why the use of local factors was, in itself, arbitrary and capricious. Next, it explained that even taking the “local factors” on their own terms, they don’t provide support for the forest service’s conclusion that the risk to bighorn sheep is moderate.
The appeals court reversed the district court’s decision denying Guardians’ APA petition and remanded to the district court to determine the appropriate remedy.