“[U]nions are lame. How about unicorns?”

“[U]nions are lame. How about unicorns?”[1]

By: Rebecca Falk

On May 21, 2018, Elon Musk received a comment “How about unions?” on his unrelated Tweet about NASA.[2]  Minutes later Musk responded,

“Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted. But why pay union dues & give up stock options for nothing? Our safety record is 2X better than when plant was [United Auto Workers] & everybody already gets healthcare.”

Musk further explained in a later comment that since Tesla was “betrayed” by United Auto Workers (“UAW”) 8 years ago, Tesla’s injury rate decreased in half and the wages increased, showing that his employees would be better off without being part of a union. However, this comment was amidst the ongoing unionization efforts of Tesla employees, and the ongoing resistance of Tesla and Elon Musk.

In 2016, a Tesla employee, Jose Moran, reached out to the UAW seeking to unionize Tesla’s employees.[5] In turn, the Union began a campaign to represent Tesla’s employees.[6] A different Tesla employee, Ortiz, even requested safety records from the California Division of OSHA.[7]  Union literature was distributed in the Tesla facility and social media pages were created to help the unionizing efforts.[8] In response to Musk’s Tweets mentioned above, members of the employee group trying to unionize Tesla, with the help of the UAW, commenced an action against Tesla, Inc. and Elon Musk for violating several of their rights under the National Labor Relations Act (“Act”).[9]

One part of their Complaint concerned the distribution of Union paraphernalia.[10] The facts were disputed but the administrative law judge decided based on the testimony that Supervisor Armando Rodriguez announced the following at a meeting: “[passing out] stickers, leaflets, and pamphlets that’s not approved by Tesla could be. . . terms of termination and be active vandalism.”[11]

The Supreme Court has found that employers may not prohibit employees from distributing union literature if the distribution is done in nonworking areas and nonworking time.[12] The NLRB has found that requiring employees to receive approval for a protected activity is unlawful.[13] Additionally, Section 8(a)(1) of the Act is violated if it communicated to employees that engaging in rights protected in the Act could “jeopardize their job security, wages, or other working conditions.”[14] Section 8 is also violated when an employer does something to disturb an Employee’s rights from Section 7.

In September 2019, NLRB judge Amita Baman Tracy found that Rodriguez’s statement and Musk’s Tweet violated Section 8(a)(1) of the Act.[16] Rodriguez’s statement implied that employees could be terminated if they passes out union paraphernalia, even if it was during nonworking time and in nonworking areas.[17] Musk, via his Tweet, similarly threatened to take his employees’ benefits away[18] when he tweeted “[b]ut why. . . give up stock options.” Musk’s tweet implied that employees would lose stock options if they vote to unionize.

This case revolves around limits employers face, and should show other employers to be careful with their words during a union campaign.

 

[1] Dani21 (Dani21), Twitter (May 21, 2018, 2:55 AM), https://twitter.com/dani21/status/998457273553833984?lang=en.

[2] Id.

[3] Elon Musk (@elonmusk), Twitter (May 21, 2018, 2:44 AM), https://twitter.com/elonmusk/status/998454539941367808.

[4] Elon Musk (@elonmusk), Twitter (May 22, 2018, 3:32 PM), https://twitter.com/elonmusk/status/999010167793504256.

[5] Tesla, Inc., Case No. 32-CA-197020, 197058, 197091, 197197, 200530, 208614, 210879, 220777 (NLRB Decision Sept. 27, 2019), https://cdn.arstechnica.net/wp-content/uploads/2019/09/Administrative-Law-Judges-Decision.pdf.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945).

[13] Brunswick Corp., 282 NLRB 794, 795 (1987).

[14] Baddour, Inc., 303 NLRB 275 (1991).

[15] Lafayette Park Hotel, 326 NLRB 824, 825 (1988), enforced, 203 F.3d 52 (D.C. Cir. 1999).

[16] Shannon Liao, Tesla violated labor laws with Elon Musk tweet, judge rules, CNN (Sept. 28, 2019, 3:29 PM), https://www.cnn.com/2019/09/28/tech/tesla-elon-musk-labor-judge/index.html.

[17] Id.

[18] Id.

[19] Id.