The National Labor Relations Board will take up the long-running case involving employees attempting to organize a chapter of the United Auto Workers at Tesla factories in Fremont, CA, and a battery plant in Sparks, NV.
The case originally was filed nearly three years ago after a UAW supporter was fired. It has been supported by the UAW International office in Detroit and now encompasses Tesla CEO Elon Musk’s use of Twitter to make disparaging remarks.
The union scored a victory last fall when a federal administrative law judge, using evidence and depositions gathered by the NLRB office in Oakland, CA, ruled Tesla had violated federal labor laws in efforts to prevent the union from gaining a foothold in the Fremont plant.
The administrative law judge’s ruling stated the electric-car maker illegally and systematically threatened and retaliated against union supporters within its workforce. A tweet Musk (below, left) sent in May 2018, which also became part of the case, suggested employees who chose to join a union would give up company-paid stock options. The tweet was coercive and was among violations of federal labor law, the judge ruled.
The administrative law judge, Amita Baman Tracy, also imposed a series of remedies that included allowing union supporters to wear the UAW insignia and posting notices throughout the company’s factories stating employees have the right to discuss joining a union.
The judge’s order calls for Tesla to offer reinstatement and back pay to the fired pro-union employee, and to revoke a warning issued to another union supporter.
While there are limits on the NLRB’s ability to punish companies found to have violated federal labor laws, in the Tesla case the judge took the additional step of requiring the company to hold a plant-wide meeting for all employees which Musk must attend.
During the meeting Musk or an agent with the labor board will have to read a notice to employees informing them that the NLRB concluded the company broke the law, and the agent will explain their rights to join a union.
Tesla has appealed the administrative law judge’s findings and ruling.
The case is now before the full NLRB and Musk is hoping the board, which is dominated by members appointed by President Donald Trump, will overturn the ruling and exonerate Tesla.
The company already has filed a brief containing 166 separate “exceptions” that detail the errors allegedly made by the judge.
Tesla also maintains in its filings that Richard Ortiz was fired for lying during an investigation and not for, among other things, asking the company for information about workplace safety records. The company contends Ortiz should not be reinstated as the judge ordered.
“The administrative law judge’s remedy is unsupported by the record, contrary to the law and punitive,” Tesla’s attorneys said.
Tesla lawyers did acknowledge there were instances where security guards or low-level employees overstepped and interfered with pro-union employees’ rights to pass out leaflets or participate in other pro-union activity.
Tesla and Musk currently are on something of a roll. The company set a production record in 2019 and its stock valuation has reached a new high even as the company’s founder dedicates a new plant in China on the heels of the unveiling of an electric pickup truck that is likely to become the next vehicle in Tesla’s product portfolio.
Nonetheless, the administrative judge’s ruling against Tesla bolstered UAW supporters’ efforts to make their case before workers. “This entire trial is an infomercial in an effort to place Mr. Musk and the company in a negative light,” Mark Ross, a Tesla attorney, said at the start of the proceedings in June 2018.
However, with the Tesla organizing effort bogged down in legal proceedings, the UAW seemed to lose focus on the organizing drive as a major scandal erupted inside the union and negotiations with Detroit’s automakers moved into high gear last year and included a 40-day strike against General Motors.
The union, however, has continued to support the legal fight in front of the NLRB and is expected to file by early February briefs with the full board, explaining why the administrative law judge’s ruling should take effect.