Houston- We Have a Problem: Lessons to Learn from Elon Musk on the National Labor Relations Act and Social Media
With the current White House Administration’s well-known, pro-union stance and the more restrictive position the National Labor Relations Board will likely take towards employers over the next four years, employers must learn lessons wherever possible to avoid National Labor Relations Act violations.
The National Labor Relations Act (“NLRA”) may not be rocket science, but even Tesla CEO and Space X founder Elon Musk can use some guidance from mission control to avoid turbulence from its application. As part of a spate of violations of the NLRA by Tesla, on Thursday March 25, 2021, the National Labor Relations Board (NLRB) upheld a 2019 ruling that found that a 2018 tweet made by Musk violated the NLRA by threatening to revoke benefits from Tesla employees if they joined a union. In the midst of the United Auto Workers (“UAW”) ongoing union organizing efforts of Tesla’s workforce, Musk posted the following message on his widely-followed Twitter account: “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 UAW & everybody already gets healthcare.”
After the UAW filed charges against Tesla, the NLRB found that “Musk’s tweet can only be read by a reasonable employee to indicate that if the employees vote to unionize that they would give up stock options. Musk threatened to take away a benefit enjoyed by the employees consequently for voting to unionize.” As part of its ruling, the NLRB ordered Tesla to delete Musk’s Twitter post and required Tesla to post a detailed notice of its labor violations for its workers at its Fremont, California plant. If the mission was to land a successful union negotiation, this ruling is a sign of a bumpy ride.
The NLRA vests employers with certain rights to voice their opinions on unions to their employees. However, the Act also limits what employers can do in response to union organizing efforts. Specifically, employers cannot:
Threaten employers based on their union activity;
Interrogate workers about their union activity or sentiments;
Make promises to employees to induce them to forgo joining a union; or
Engage in surveillance on workers’ union organizing efforts.
Employers should provide ongoing supervisor training on the intricacies of the NLRA’s rules, including whenever union organizing efforts are initiated. Employer violations of the NLRA can lead to fines and arguably more importantly, severely undermine the employees’ perception of the employer.
The NLRA also protects employees’ rights to make certain statements on social media, regardless of whether union organizing efforts are occurring. Employee statements about wages, hours, or working conditions are protected under the Act, and this protection has been broadly interpreted by the NLRB in favor of employees. Employers must avoid policies that prevent employees from making such protected statements on social media. This is especially true considering the current White House Administration’s pro-union stance that it and the National Labor Relations Board will maintain for at least the next four years.
Employers should have their social media policies reviewed and train their supervisors and managers to minimize the risk of NLRA violations, particularly in light of increased organizing efforts throughout the United States.