Tesla and CEO Elon Musk have controversial records, especially when it comes to tweets. Apparently that's an issue in a National Labor Relations Board case, which was decided on Friday.

In 2016, according to the administrative court records, the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America--also known as the United Auto Workers, or UAW--tried organizing employees at Tesla. Some of the Tesla workers joined the effort in 2017, ultimately talking publicly about working conditions at the company, began leafletting other employees, requesting safety records from the company, and wearing UAW shirts and stickers at work.

Musk and chief people officer Gabriel Toledano met with one of the employees involved in the efforts, at which point "promised to correct problems before the Union could come to Tesla and made other coercive statements including telling Jose Moran and another employee that the UAW would not give them a voice."

Then, in October 2017, Tesla terminated Charging Party Richard Ortiz and disciplined Jose Moran after Richard Ortiz posted a comment and employee pictures on a private Facebook page in response to two Tesla employees opposing a UAW sponsored bill before the California State Assembly. Finally, Respondent violated the Act with Musk's May 20, 2018 Twitter post where he suggested to his followers that the employees would no longer have stock options if the Union was elected. I find merit to all but a few allegations as set forth in the General Counsel's consolidated complaint.

The "I" in question is Administrative Law Judge Amita Baman Tracy. And here's the Twitter post:

The actions were problematic because employers aren't allow to prevent their employees from unionizing. There were additional issues over described attempts to restrict employees from passing out pamphlets on nonwork time. And then, the tweet:

Here, Musk's tweet was sent out to 22,700,000 followers on Twitter, some of whom are employees of Tesla. 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. The Board has held that statements reflecting the possible loss of existing benefits through good faith bargaining does not constitute an unlawful threat of the loss of existing benefits. Wild Oats Markets, Inc., 344 NLRB 717, 717-718 (2005) (no threat where employer communicated to employees in a flyer that employees could lose benefits during collective bargaining). In contrast, Musk's statement cannot be read as an outcome that could occur due to good-faith collective bargaining but instead made this statement as a threat of unilateral discontinuation of existing benefits if the employees unionized.

The result was a finding that Tesla "committed unfair labor practices" in a number of ways and orders that curtailed certain rules and activities of the company and the removal of any record of punishment for one employee and an offer of reinstatement to the one fired, in addition to back pay, and to inform employees of their rights.

The point here is not to dump on Tesla, but to recognize how easy it is for companies of all sizes to make big errors in their HR practices. Things happen all the time, particularly when executives and managers aren't current on understanding the applicable legal requirements.

Years ago, I noted on Inc.com that, according to an employment lawyer, when it came to the example of missing wages, 90 percent of missing wages lawsuits he saw were aimed at small-to-medium businesses.

It's easy not to know the laws and the implications can be serious. Be sure that either you have someone extremely knowledgeable on staff of that you have a labor lawyer on speed dial.

Published on: Sep 29, 2019
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