Federal Labor Board Claims Tesla Intimidated Workers Trying to Unionize

Tesla’s auto assembly plant in Fremont is experiencing more labor woes.
By Alyssa Jeong Perry September 6, 2017Share
The labor dispute at Tesla continues to heat up. The National Labor Relations Board, or NLRB, claims that Tesla illegally intimidated workers who are trying unionize at its Fremont plant.

The NLRB is a government agency that safeguards workers rights to unionize. Three Tesla workers lodged a series of complaints against the electric car maker.

In one incident, a Tesla employee said he was restrained by a security guard as he was passing out flyers and pamphlets about unionizing with the United Auto Workers. The employee says he wasn’t on the clock but participating in the activity during his free time.

An employee claimed that in March, during a pre-shift meeting, a supervisor threatened to fire any employees that continued to pass out flyers not approved by Tesla.

Employees claim these actions show Tesla is trying to intimidate and coerce factory workers to stop unionizing. If true, the actions break federal law according to the National Labor Relations Act, said Bill Sokol, a labor lawyer and lecturer at San Francisco State University.

“This is a new age car company making a new age car but it’s engaging in same old union busting tactics that GM, Ford and Chrysler used almost a century ago in the Great Depression,” Sokol said.

Last Thursday, the National Labor Relations Board found merit in the employee’s claims and filed a complaint against Tesla.

The NLRB also claims that the confidentiality agreement that Tesla employees must sign restricts employees’ ability to unionize. The agreement doesn’t allow workers to talk about the nature of their work or their work conditions at the Fremont plant. Such non-disclosure agreements, or NDAs, have come under heightened scrutiny in Silicon Valley. Critics say NDAs also make it harder for employees to pursue workplace discrimination cases.

Tesla’s workers have been actively unionizing since the beginning of the year with the United Auto Workers. They have been claiming unsafe working conditions as well as low pay.

Tesla CEO Elon Musk voiced his opposition to unionizing Tesla’s Fremont plant in an email to employees in February. He claimed the company’s total recordable incident rate since January 1st is under 3.3, which is less than half the industry average of 6.7. He also offered to install company perks like free frozen yogurt and a roller coaster connecting buildings together.

“It’s going to get crazy good,” Musk wrote in the memo.

But a report published by the advocacy group Worksafe said nonfatal reported injuries at Tesla’s Fremont plant actually were 31 percent higher in 2015 than the industry as a whole (data for 2016 has not yet been released).

In a statement to KQED regarding the NLRB complaint, a Tesla spokesperson said the charges were baseless and blamed the United Auto Workers for coercing employees to unionize.

“As we approach Labor Day weekend, there’s a certain irony in just how far the UAW has strayed from the original mission of the American labor movement, which once advocated so nobly for the rights of workers and is the reason we recognize this important holiday. Faced with declining membership, an overwhelming loss at a Nissan plant earlier this month, corruption charges that were recently leveled against union leaders who misused UAW funds, and failure to gain traction with our employees, it’s no surprise the union is feeling pressured to continue its publicity campaign against Tesla. For seven years, the UAW has used every tool in its playbook: misleading and outright false communications, unsolicited and unwelcomed visits to the homes of our employees, attempts to discredit Tesla publicly in the media, and now another tactic that has been used in every union campaign since the beginning of time – baseless ULP filings that are meant only to generate headlines. These allegations, which have been filed by the same contingent of union organizers who have been so outspoken with media, are entirely without merit. We will obviously be responding as part of the NLRB process.”
Tesla must respond to the NLRB complaint by September 14, 2017. The company has a right to a trial with a federal administrative law judge.

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Trump’s National Anti-Labor Relations Board

Justin Miller July 18, 2017

The president’s NLRB nominees portend a bleak future for American workers.

In his first seven months in office, President Trump has made quick work undoing a host of Obama-era labor regulations. Now that he finally got around to making two nominations to the National Labor Relations Board, he’s beginning the pernicious, though slow-moving, assault on worker and union rights that typically plays out when the board has a Republican majority.

It’s at the NLRB, the independent agency charged with enforcing and interpreting the nation’s labor laws, where Trump will be able to most forcefully reverse President Obama’s workers’ rights legacy—a highly vulnerable legacy given that it was confined to leveraging the power of executive-branch departments and agencies.

Trump’s NLRB nominees are longtime Republican lawyer Marvin Kaplan and management-side labor lawyer William Emanuel. If they’re confirmed, Republicans would have a 3-to-2 majority. The Senate Health, Education, Labor, and Pensions committee is expected to vote Wednesday to confirm both appointees, at which point they will go before the full Senate.

It took years for Obama to overcome Republican intransigence and have the Senate approve all five of his appointees. But once Obama’s NLRB was finally up and running, it delivered a series of bold decisions that moved labor law back in favor of workers and their unions—as the original National Labor Relations Act was intended to do—after George W. Bush’s board had, for eight years, tilted the scales in favor of management.

With several landmark decisions, Obama’s board altered the labor law landscape in ways that made it easier for employees to organize and increased corporate responsibility for workers.

In 2011, the board ruled in Specialty Healthcare that workers were able to form smaller collective-bargaining units, which have come to be known as “micro-units.” It also enacted a new rule that speeds up the union election process in hopes of mitigating the influence of management’s union-busting tactics. Both are vulnerable under a Republican NLRB.

The NLRB’s most impactful ruling came in 2015’s Browning Ferris decision, in which it ruled that a company was responsible for the labor violations of a contractor or franchise operator. The case established a major precedent that labor advocates believed would be used to address the fissuring of work that many companies relied on to limit their exposure to traditional employer responsibilities. Based on this new standard, the Service Employees International Union is currently seeking to establish that the McDonald’s corporation is a joint employer of the workers at its franchise locations, which could make it partially responsible, for instance, for negotiating collective-bargaining agreements at individual stores. The SEIU case is currently before an NLRB administrative judge. Depending on the judge’s ruling, the case could go before the full board.

Labor law observers expect that the new Republican majority will be eager to undo Browning Ferris’s joint-employer standard and restore the legal barriers provided to companies that utilize contracting and franchising.
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Labor law observers expect that the new Republican majority will be eager to undo Browning Ferris’s joint-employer standard and restore the legal barriers provided to companies that utilize contracting and franchising. Meanwhile, corporate lobbying outfits and congressional Republicans are gearing up to push legislation that would simply undo the standard.

Another landmark case came when the NLRB ruled in 2016 that graduate students at private universities are covered under the National Labor Relations Act and are allowed to form unions. The ruling has led grad students at several prestigious private universities to launch organizing campaigns and hold union elections. Many of those universities’ presidents have responded with delaying or union-busting campaigns in the hope that a Trump NLRB will reverse the decision.

The board also ruled in D.R. Horton that mandatory arbitration clauses, which forbid employees from joining class-action lawsuits over labor violations, are illegal. The Supreme Court is expected to take up the matter, but if it defers to federal agencies, Trump’s NLRB could reverse the decision.

Both Emanuel and Kaplan have drawn the wrath of labor unions and progressive advocacy organizations, which contend that they will come down in favor of corporations instead of the working people that Trump purported to speak for during his presidential campaign. “In today’s economy, where inequality is on the rise and unions are on the decline, workers need to be able to feel comfortable when they come together to better working conditions,” says Catherine Ruckelshaus, general counsel for the National Employment Law Project. “The board is supposed to support those actions.”

William Emanuel is a lawyer with a long track record of representing corporate giants in labor disputes. As Michael Arria reported last week for In These Times, Emanuel disclosed 49 former clients, pledging to recuse himself from cases involving those companies, which include Uber, Nissan, and JPMorgan Chase. He also authored an amicus brief defending the class-action waivers in employment contracts that the NLRB outlawed.

Trump’s other nominee, Marvin Kaplan, is currently counsel to the Occupational Safety and Health Review Commission. Before that, he was the Republican counsel on the House Committee on Education and the Workforce where, as The New York Times reports, he helped craft legislation aimed at rolling back specific NLRB actions.

William Gould, who served as the NLRB chairman during the Clinton administration, recently wrote a scathing op-ed in the San Francisco Chronicle opposing Kaplan’s nomination.

Since the 1980s, a number of NLRB nominees by Republicans as well as Democrats have come from Capitol Hill staffs. This has promoted a trend toward the appointment of Washington insiders trading places between political staffs and Washington law firms—the insider elite, which supposedly prompted President Trump’s call to “drain the swamp.” Kaplan would constitute the Washington insider plus. His deep involvement in initiatives designed to impair the Obama NLRB have involved him directly in an unprecedented attempt to control the board through politics.

Though Trump has already undone many of Obama’s pro-labor rules and regulations, it’ll take longer for a Republican NLRB to reverse the precedents established by Obama’s
Though Trump has already undone many of Obama’s pro-labor rules and regulations, it’ll take longer for a Republican NLRB to reverse the precedents established by Obama’s board because relevant cases have to percolate up to the board, which can take years.

That’s small comfort for a vulnerable labor movement that is once again facing down an adversarial federal government.

The impending Trump NLRB highlights just how precarious the board is as a vehicle for transforming labor law in favor of workers. While piecemeal advances under Democratic administrations’ labor boards are helpful, they are, of course, nowhere near enough to combat the systemic undermining of federal labor law and collective worker power by corporations and allies in the Republican Party—especially when GOP administrations make the NLRB’s pendulum swing back in favor of management.

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Donald Trump plans to fill the National Labor Relations Board with union-busters: report

Union-buster Doug Seaton is one of the three lawyers on Trump’s list to sit on the NLRB
Charlie May Skip to Comments

Topics: National Labor Relations Board, Politico, President Trump, union-busters, Unions, Politics News, Business News, News

Enlarge(Credit: Mel Evans)
Just a few weeks ago at a building trades convention, President Donald Trump promised labor leaders that they would “always find an open door” at the White House. That open door seemingly was shut in their faces.

Trump will soon nominate a union-buster to sit on the National Labor Relations Board, according to a Politico report. The NLRB was established in 1935 as an independent government agency to protect unfair labor practices and collective bargaining.

Three labor attorneys are on Trump’s list to fill the NLRB, which has two vacant spots. None of them support unions. Minneapolis attorney Doug Seaton is one of them, calling himself a “lawyer for employers.”

“He makes his living, in part, by hiring himself out to managers on whose behalf he urges workers not to join unions,” Politico reported. Republican presidents since Ronald Reagan have been strongly opposed to unions, and frequently named anti-union executives and attorneys to the NLRB.

“That is way out of line,” said Larry Cohen, former president of the Communications Workers of America, according to Politico. “Seaton would represent one of the worst-ever nominees to the NLRB.” Added Politico:

Randi Weingarten, president of the American Federation of Teachers, agreed. “Doug Seaton’s potential nomination,” she said in a written statement, “would be the latest example of Trump turning his back on workers.” Seaton “has spent his professional career fighting workers’ effort to join unions and gain a voice on the job,” she said. “He has no place on a board whose sole mission is to empower and protect working people.”

The preamble to the National Labor Relations Act, the 1935 law that created the NLRB, declares it “the policy of the United States” to encourage “the practice and procedure of collective bargaining” and to protect “the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment.”
Union-busters are required to publicly disclose anti-union campaigns. Seaton has made six disclosures and is currently leading a seventh campaign to decertify the Service Employees International Union from representing Minnesota’s 27,000 home health care workers. However, he is not required to register this because under state law “personal care assistants” are public employees, according to Politico.

Joe Schmitt, a management-side lawyer in Minnesota who worked with Seaton back in the 1990’s told Politico that Seaton was “very sharp” and that “there isn’t anyone who knows the substantive area better.” But added that he is extremely management-side.”

“I’m on the same side as Doug, but he is one of the most extreme management-side lawyers I know. I’m not a big fan of unions, but Doug is much less of a fan.”

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NLRB: USPS managers could be disciplined who fail to supply relevant information to Unions

NLRB: USPS managers could be disciplined who fail to supply relevant information to Unions

By Don Cheney

April 26, 2015

A National Labor Relations Board decision issued April 16, 2015, in United States Postal Service (10-CA-134589, et al.) out of Alabama is similar to one last year from Roswell, Georgia (10-CA-120885). The NLRB must be getting tired of USPS scofflaws. It includes the same language as before: “Supervisors or managers who fail to reasonably supply relevant information to the Union will have this fact mentioned in the ‘corrective action’ column of the semi-annual audit report provided to the district manager and district manager of human resources. A repeated violation could lead to discipline of said supervisor or manager.”

The National Labor Relations Act does not require a request for information (RFI) from a steward to be in writing. A RFI may be submitted orally or in writing, as in these NLRB cases. Supervisors that require a RFI in writing for routine requests, like work schedules and clock rings, before providing it are using an unlawful delaying tactic. Medical information is an exception, due to HIPPA. If the manager or supervisor believes that they need additional time, the manager or supervisor is supposed to inform the Union in writing, request additional time and explain the need for the additional time.

In these situations it is customary for the parties to extend the time limits for processing a grievance. If the manager or supervisor refuses, there is a remedy. In United States Postal Service (10-CA-129726; 362 NLRB No. 70), decided April 17, 2015, the NLRB ordered the Postal Service to waive any grievance processing deadlines that the Union missed due to management’s delay in providing information specified in the complaint. This charge was filed by National Association of Letter Carriers, Branch 233, in Columbia, South Carolina.

Don Cheney
Auburn WA

NATIONAL LABOR RELATIONS BOARD
Washington, D.C., April 16, 2015

United States Postal Service (10-CA-134589, et al.) Auburn, Birmingham, Decatur, Gadsden, Huntsville, Jacksonville, Leeds, and Tuscaloosa, Alabama. Charges filed by American Postal Workers Union, Gadsden Area Local 537; National Association of Letter Carriers, Branch 1047; and National Postal Mail Handlers Union, Local 317.

DECISION AND ORDER

Based on the above findings of fact, the Formal Settlement Stipulation, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board orders that:

The Respondent United States Postal Service, Auburn, Birmingham, Decatur, Gadsden, Huntsville, Jacksonville, Leeds, and Tuscaloosa, Alabama, its officers, agents, successors, and assigns, shall

1. Cease and desist from:

(a) Refusing to bargain collectively and in good faith with the American Postal Workers Union, Gadsden Area Local 537, by failing, refusing, and unduly delaying in furnishing information that is relevant and necessary to the performance of their duties as agents of the American Postal Workers Union (APWU National Union)….

(b) Refusing to bargain collectively and in good faith with the National Postal Mail Handlers Union, Local 317, by failing, refusing, and unduly delaying in furnishing information that is relevant and necessary to the performance of their duties as agents of the National Postal Mail Handlers Union (National NPMHU)….

(c) Refusing to bargain collectively and in good faith with the National Association of Letter Carriers, Branch 1047, by failing, refusing, and unduly delaying in furnishing information that is relevant and necessary to the performance of their duties as agents of the National Association of Letter Carriers (National NALC)….

(d) In any other like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act:

(a) Upon request, provide the Unions with necessary and relevant information in a timely and appropriate manner.

(b) Each information request tendered by the Unions, orally or in writing, shall be recorded at each of the Respondent’s facilities located in Auburn, Birmingham, Decatur, Gadsden, Huntsville, Jacksonville, Leeds, and Tuscaloosa, Alabama. These logs shall include the following information: a brief description of the information requested; the name of the individual who is making the request; the name of the supervisor who received the request; the date the request was made; and the date that the Respondent’s manager or supervisor provided the Local Union with the requested information. If the manager or supervisor, having reviewed the documents requested, believes that the Respondent will need additional time, the manager or supervisor will inform the Union in writing, requesting additional time and explaining the need for the additional time.

(c) Each manager and supervisor who is designated to receive union requests for information at the Respondent’s facilities located in Auburn, Birmingham, Decatur, Gadsden, Huntsville, Jacksonville, Leeds, and Tuscaloosa, Alabama, will receive annual training which encompasses how to maintain the log, and how to tender the relevant information requested by the Union; each such supervisor and manager will sign an acknowledgment form attesting to the fact that he or she has completed said training. A copy of this acknowledgement form shall be maintained in the supervisor’s or manager’s training and history files. Union stewards will be granted access to the logs, upon request. Supervisors or managers who fail to reasonably supply relevant information to the Union will have this fact mentioned in the “corrective action” column of the semi-annual audit report provided to the district manager and district manager of human resources. A repeated violation could lead to discipline of said supervisor or manager.

(d) Union stewards at the Respondent’s facilities located in Auburn, Birmingham, Decatur, Gadsden, Huntsville, Jacksonville, Leeds, and Tuscaloosa, Alabama must be notified when the manager or supervisor who is designated to receive union requests for information at their particular facility has changed.

(e) The Respondent’s legal department or its labor relations department shall conduct semi-annual audits of the logs at each of the Respondent’s facilities located in Auburn, Birmingham, Decatur, Gadsden, Huntsville, Jacksonville, Leeds, and Tuscaloosa, Alabama to ensure that the information requested by the Unions is being handled in a timely and appropriate manner, and to ensure the logs are being properly maintained. Following the audit, the legal department or labor relations department shall tender, in writing, a written report that will be forwarded to the district manager and district manager of human resources.

(f) Within 14 days of service by the Region, post at all of its facilities located in the State of Alabama, copies of the attached notice marked “Appendix A.” Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted.

(g) Within 21 days after service by the Region, file with the Regional Director for Region 10 a sworn certification of a responsible official on a form provided by the Region attesting to the steps the Respondent has taken to comply. The Regional Director shall be supplied a copy of the documents signed by the district manager of labor relations, attesting to the dates that the notices were received at each facility, and the dates that the notices were posted.

Mark Gaston Pearce, Chairman
Harry I. Johnson, III, Member
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD

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