FREMONT, Calif. —Tesla Motors and more particularly, its owner, Elon Musk, have joined the ever-lengthening list of rich corporate moguls breaking labor law.
In Musk’s case, it was with a tweet, and his Twitter account had—at the time of his offense—22.7 million followers.
And his net worth was, depending on stock market gyrations week to week, between $153 billion and $180 billion, even though he took little actual pay from Tesla.
Musk is traveling in fast company on labor law-breaking: Jeff Bezos, CEO of Amazon, one of the three richest people in the U.S., and the right-wing Walton clan, owners of Walmart, among many others.
As for Tesla, it illegally fired Richard Ortiz, who was leading an organizing drive for the United Auto Workers at the firm’s Fremont, Calif., car plant, a former unionized joint Toyota-General Motors factory. In its March 25 ruling, the National Labor Relations Board ordered Tesla to take Ortiz back, with net back pay, but that’s all.
NLRB also ordered Tesla to post a “we broke the law and will not do it again” NLRB-mandated notice, and to stop illegally interrogating, intimidating, and harassing workers about the union.
Safety was the big deal at Tesla’s Fremont plant when UAW began its organizing drive there in fall 2016, NLRB Administrative Law Judge Anita Tracy wrote in her original ruling. For good reason: Worksafe, a non-profit organization dealing with health and safety on the job, reported injury rates at the Tesla Fremont plant from 2015-17 were approximately double the auto industry average.
“As workers here at the Fremont plant, we believe in Tesla’s mission and work hard to make the company successful. But we also believe our company can expand that mission to recognize the important role workers like us play in building the company’s future. Tesla workers deserve to have a fair, safe, and secure workplace,” the workers’ flyer began.
“We should come to work knowing we will return home to our families without being injured at work. Unfortunately, all too often, this isn’t the case. Workers are getting hurt on the job, and see work areas where accidents could easily happen,” it said later.
“In addition, too many of our coworkers don’t report injuries or other safety concerns because they are afraid of retaliation. We believe the best, most fair, and most effective solution to safety and other concerns is for us to form our union so we can work together with management and have a true voice when it comes to our working conditions.”
But on June 7, 2017, literally the day after worker Jose Moran, another UAW supporter, started distributing the flyer, Ortiz and Moran were summoned to a meeting with Musk and his HR officials. At the meeting, Musk told four workers that voting for unionization would deprive workers of individual voices, leaving UAW to speak for them—a statement Tracy ruled broke labor law. But the board overruled her. Tesla did not discipline the other two workers.
But the board didn’t overrule Tracy’s decision that Musk’s subsequent tweeted statement from @elonmusk, a year later, broke labor law. His tweet declared if the workers went union, they would lose benefits, specifically the chance at stock options. Backing her, the board ordered Musk to delete it.
“Nothing stopping Tesla team at our car plant from voting union,” his tweet read. “Could do so tmrw if they wanted. But why pay union dues and give up stock options for nothing? Our safety record is 2X better than when plant was UAW & everybody already gets healthcare.”
Tesla also broke labor law by firing Ortiz, disciplining Moran, and in the non-disclosure agreement, its employee handbook mandated every worker sign electronically. Tesla banned worker statements without company approval not just when they worked for Tesla, but after.
The initial ban was too broad and the lifetime ban was illegal, too, the board said. It ordered Tesla to dump the ban from the handbook and the agreement.
The UAW welcomed the board’s “sweeping decision” against Musk and Tesla “to cease interfering with workers seeking to organize” at Fremont. Cindy Estrada, UAW’s vice president for organizing, also noted it again points out how weak U.S. labor law is in terms of penalties.
Besides posting the notice at Fremont, NLRB ordered Musk to delete his tweet and told Tesla to rewrite the handbook, rehire Ortiz and remove the discipline against Moran from his record. But there were no fines, other than net back pay for Ortiz since he was canned in 2018.
“The decision comes three and a half years after production associate Richard Ortiz was fired and other union supporters were threatened and disciplined. Tesla incurred no financial penalty for its conduct. It must post a notice of its violations, as well as the policy changes it is ordered to make, and reinstate Mr. Ortiz with backpay.
“This is a great victory for workers who have the courage to stand up and organize in a system currently stacked heavily in favor of employers like Tesla who have no qualms about violating the law,” Estrada’s statement said. “While we celebrate the justice in today’s ruling, it nevertheless highlights the substantial flaws in U.S. labor law. Here is a company that clearly broke the law and yet it is three years down the road before these workers achieved a modicum of justice.”
Left unsaid: Tough penalty provisions in HR842, the Protect The Right To Organize Act, the comprehensive pro-worker labor law reform legislation workers, UAW, the labor movement, and its allies and their allies are pushing. The Democratic-run House passed it this year.
If applied to Tesla, the PROAct would mandate the NLRB force Tesla to reinstate Ortiz “while retaliation cases are pending”, and with the chance for monetary damages. Tesla would have faced a fine of at least $50,000. There also would be “civil liability for corporate officers” who break the law, as Tusk did, the Economic Policy Institute reports. And if the NLRB didn’t act, Ortiz could sue on his own. Under current labor law, he can’t.
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