Elon Musk is a media magnet. Ignore that he is involved with a company creating neural computer interfaces, dates pop stars and actresses, sells flamethrowers, and is trying to solve city congestion by drilling tunnels. He ran Tesla until the SEC forced him to step down as chair, but is still listed by the company as its “co-founder and CEO.” Tesla alone has over 48,000 employees, from whom have come many odd complaints about their employment including racism, high injury rates, long hours, wage and hour violations, etc. Not surprisingly, Tesla workers have expressed interest in forming a union.

Musk and Tesla have some history with the question of unionization. In fact, Musk has a history of vocally expressing his thoughts on Unions by Twitter. Though Musk has indicated that Tesla workers are free to unionize but don’t want to, all indications are that they do. Musk has used Twitter to attack the media, insult British cave divers, and get himself in trouble for commenting on Tesla’s finances. In the face of efforts by Tesla employees to unionize, Musk again took to Twitter. He was found to have attempted to sabotage unionization efforts by the NLRB. He was ordered to cease and desist. The ALJ is limited in its ability to penalize under its order. Moreover, an appeal is expected, but much of the damage is likely done, and some believe that his efforts may have actually promoted unions not only for Tesla, but tech and Silicon Valley more generally. Ooops…

This may seem academic, but on occasion we are asked by clients to discuss employee efforts to unionize. In some situations there are discussions about how to handle ongoing efforts, in others it is the anticipation of such efforts, and on occasions there are discussions about reorganization to address the effects of such efforts. Unsurprisingly, the general bent of employers is to dislike or even attempt to avoid unionization. Sometimes this leads to such efforts as the creation of non-solicitation policies – the validity and enforcement of which is in doubt. Regardless, employees can’t be fired for promoting unions under the National Labor Relations Act, 29 USC Chapter 8. Moreover, the provisions of 29 USC Chapter 7 give employees the right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” or to refrain from the same. As Elon Musk found, it is an illegal unfair labor practice to interfere with efforts of labor to organize, to discriminate against or encourage or discourage membership in such organizations, to discharge for complaints of unfair labor practices, or to refuse to bargain collectively.

Regardless, both labor and management have rights with respect to collective bargaining and organization. As a result, both also have responsibilities, and their actions are constrained, particularly in the beginning of labor organization. It’s best for management to not expose itself to criticism over haphazard comments or other efforts to prevent such organization, as this may not only be illegal, it may promote exactly the formation of a union management would prefer to avoid.

… and if all else fails, where unions are concerned, “Just stay off Twitter, dude.”

If you have questions about this article, or labor and management issues in general, please contact Dov Szego at dszego@setlifflaw.com (804-377-1263) or Steve Setliff at ssetliff@setlifflaw.com (804-377-1261).