04/13/2023
Tesla, Inc., Board Case No. 32-CA-197020 (reported at 370 NLRB No. 101) (5th Cir. decided March 31, 2023).
In a published opinion, the Court enforced the Board’s order that issued against this manufacturer of electric vehicles at a plant in Fremont, California, where it committed numerous unfair labor practices during an organizing campaign initiated by employees seeking representation by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. In doing so, the Court denied Tesla’s petition for review, which disputed only an unlawful discharge and the Board’s finding that CEO Elon Musk threatened employees by tweeting that they would lose stock options if they unionized. Further, the Court denied the Union’s petition for review, which challenged the Board’s dismissal of an allegation that Tesla unlawfully solicited grievances, as well as the Board’s determination not to issue a notice-reading remedy.
The Board (Chairman McFerran and Members Emanuel and Ring) found that Tesla committed a litany of unfair labor practices when it unlawfully responded to its employees’ organizing efforts by repeatedly coercing, threatening, and discriminating against them. Among other violations, the Board found that Tesla violated Section 8(a)(1) by coercively interrogating employees on five occasions, threatening them with the loss of stock options if they unionized, and maintaining a confidentiality agreement that employees would reasonably interpret to interfere with protected activity, and restricting their use of the company’s messaging-and-data program in response to protected activity. The Board also found that Tesla violated Section 8(a)(3) and (1) by discharging one key employee organizer, and warning another. In the absence of exceptions, the Board adopted the Administrative Law Judge’s findings that Tesla violated Section 8(a)(1) by twice interfering with its employees’ distribution of union leaflets, prohibiting employees from distributing union materials, and threatening them with discharge if they did, and threatening that unionization would be futile. Further, the Board dismissed several allegations, including an unlawful discharge allegation, and declined to order a notice-reading remedy. Before the Court, Tesla conceded the bulk of those unfair-labor-practice violations.
In a comprehensive opinion, the Court rejected Tesla’s argument that its CEO’s tweet, which conveyed to employees that they would “give up stock options” if they voted for the Union, was speech protected by Section 8(c) of the Act. Relying on NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Court explained that “a statement implying that unionization will result in the loss of benefits, without some explanation or reference to the collective-bargaining process, economic necessity, or other objective facts, is a coercive threat, while such a statement is not a threat if made in the context, for example, of explaining that existing benefits may be traded away during the bargaining process.” Here, the Court found that the tweet did not include any objective facts that would lead a reasonable employee to conclude that the statement was anything other than a threat. Moreover, the Court rejected Tesla’s argument that the Board erred in not taking into account later tweets and a press release, noting that such non-contemporaneous communications “cannot change whether the original tweet was a threat.” In so holding, the Court emphasized its view that “Tesla’s history of labor violations supports the NLRB’s finding that employees would understand Musk’s tweet as a threat to commit another violation by rescinding stock options as retaliation.” On the unlawful discharge finding, the Court held that substantial evidence supported the Board’s finding that union animus motivated, at least in part, Tesla’s decision to fire the employee, who in response to questioning during an investigation, had lied about union activity.
Turning to the issues raised by the Union’s petition, the Court upheld that the Board’s dismissal of the allegation that Tesla had unlawfully solicited grievances, finding it fully supported by the record evidence. Regarding the Board’s determination not to order a notice-reading remedy, the Court declined to disturb the Board’s determination, noting “the deferential standard of review and the ‘special respect’ given to the NLRB’s choice of remedy in light of its policy expertise and its broad, discretionary remedial powers.” Go to https://www.nlrb.gov/case/32-CA-197020 for a copy of the decision.
TESLA, INC. E-File Follow Sign into MyNLRB to follow cases and receive updates. What is this? Case Number: 32-CA-197020 Date Filed: 04/17/2017 Status: Open Location: Fremont, CA Region Assigned: Region 32, Oakland, California Docket Activity Items per page Date Document Issued/Filed By 04/12/2023...
