Another win for workers as Tesla and Musk lose yet again in federal court

In another win for workers, Elon Musk and his companies continue to lose in court and at the National Labor Relations Board (NLRB).

On March 31, the U.S. Court of Appeals for the Fifth Circuit affirmed a finding from the NLRB that Tesla had illegally fired an employee from the company’s Fremont, CA plant and that Elon Musk, Tesla’s chief executive, had illegally threatened workers’ stock options–and thus their compensation–if they elected to unionize. 

The decision allows the NLRB to enforce their 2021 order which requires Tesla to reinstate, with back pay, the employee and union organizer, Richard Ortiz. The NLRB concluded that Ortiz, who was involved in an effort to unionize the plant in 2017, was illegally fired because of his union activity. 

Ortiz and his coworkers initiated their unionization efforts due to safety concerns at the Fremont, CA plant. Further, in 2016 the company forced employees to sign confidentiality agreements that violated the law by banning them from talking to the media about working conditions. A report released in 2017 with data from California’s worker-safety agency Worksafe showed that recorded injuries at the Fremont plant were 31% higher than the average auto factory. 

The federal court’s decision also requires–per the 2021 NLRB order–Musk to delete a Twitter post that threatens Tesla employees would “give up stock options” if they chose to unionize. 

Courts and the NLRB use a test established in NLRB v. Gissel Packing Co. to determine whether a statement made by an employer or their agent is a prediction (legal) or a threat (illegal). According to the test, a lawful prediction is carefully phrased based on objective fact, it conveys the employer’s belief, and is related to demonstrably probable consequences that are beyond the employer’s control. 

A threat is defined as going beyond a prediction and typically contains the implication (if not a direct announcement) of negative consequences of unionization that the employer controls. Alternatively, threats might include negative consequences of unionization that the employer does not control, but are without a basis in fact. While important for organizers to understand, these definitional distinctions are ultimately legal semantics created by the capitalist class. At the end of the day, predictions are generally nothing more than “legal threats.”

In this case, both the NLRB and the Fifth Circuit agreed that Tesla workers would interpret the tweet as an (illegal) threat to eliminate their stock options if they elected to unionize, despite Tesla’s attorneys’ attempts to twist the Gissel test in its favor. As a result of these rulings and in accordance with the 2021 NLRB order, a notice reminding workers of their right to unionize and affirming that Tesla will not threaten employees with loss of benefits if they elect to join a union must be posted at all company facilities nation-wide. 

A system that prioritizes the needs of workers would not allow any threats (regardless if they are carefully crafted by attorneys or fired off in an early morning Twitter rage by capitalist owners) to be permitted in the workplace. 

This is not the only fight workers have taken up against Musk and his companies. Last year a number of former employees at SpaceX, the rocket manufacturer run by Musk, filed charges of unfair labor practices including retaliation when they were fired after asking management to enforce the company’s own policies on sexual harassment. Tesla continues to be in hot water with the NLRB, including a recent ruling that determined Tesla’s policy barring union apparel was unlawful and a complaint was issued by the NLRB after the company forbade its Orlando, FL employees from discussing their pay and working conditions. And suits by former Twitter employees are possible, as Musk laid-off over half of its employees within weeks of acquiring the company. He continues to fire employees who are critical of him and the management of his companies.

Despite the short-fallings of the capitalist legal system, this is a win for workers across the country. This recent decision proves that when workers unite and stand together on principle, we can win fights against the biggest capitalists in the world. 

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