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Threatening Workers Who Want To Unionize Is Illegal, A House Democrat Just Told Elon Musk

"I want to make sure you are fully aware of federal labor law," Rep. Keith Ellison wrote in a letter to Tesla CEO Elon Musk.

Posted on June 1, 2018, at 2:15 p.m. ET

Elon Musk received a letter Friday from Rep. Keith Ellison, a Democrat from Minnesota, reminding the Tesla CEO that it is illegal to threaten to punish employees who want to join a union.

“I request a commitment that you will refrain from violating Tesla workers’ federal rights under the National Labor Relations Act (NLRA),” Ellison wrote. “I found your comments to be troubling and want to make sure you are fully aware of federal labor law.”

On May 21, Elon Musk tweeted that Tesla employees were free to join a union, but said, “But why pay union dues & give up stock options for nothing?”

A spokesperson for Tesla said the company is reviewing the letter and plans to respond directly to Ellison soon.

@dmatkins137 @ShayneRarma @NASA 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.

On the issue of stock options and unionizing, a company spokesperson had previously stated that "Elon’s tweet was simply a recognition of the fact that unlike Tesla, we’re not aware of a single UAW-represented automaker that provides stock options or restricted stock units to their production employees.”

Still, the tweet gave some employees the impression that if they joined the union, Musk would take away their stock options. A group of Tesla employees, who filed a charge with the National Labor Relations Board (NLRB) in April 2017, recently added the perceived tweet threat to their list of allegations.

As Ellison’s letter says, labor law “outlaws any employer attempts to ‘interfere with, restrain, or coerce employees in the exercise of rights’” and “prohibits a broad range of employer conduct, including more subtly coercive statements like those in your tweet.” Ellison is the labor liaison to the Congressional Progressive Caucus.

A representative from Ellison's office told BuzzFeed News, "We do what we can to support workers. The congressman is very passionate about that."

The Tesla employees are also accusing the company of wrongfully terminating workers involved in the union drive, surveillance, and intimidation. The NLRB filed a complaint against Tesla in August 2017, and a hearing in front of an administrative law judge is currently scheduled for this month.

Tesla has also been accused of failing to record worker injuries by the investigative news nonprofit Reveal. This week, Reveal said some of those injuries started reappearing on Tesla’s health and safety logs, despite the fact that the company denied any wrongdoing when the original report was published.

Ellison’s letter also addresses worker injuries, noting Tesla’s unusually high rate of injury in 2015, and multiple incidents in which employees suffered electrical burns, and asks Musk, “will you explain the thirteen injuries added to Tesla’s official injury log for 2017 that were not reported initially?”

Tesla said last November it was acquiring a Minnesota-based automation firm, which continues to operate in Brooklyn Park, Minnesota (not in Ellison's district).

Here’s the full text of Ellison’s letter, which asks Musk to respond by June 15:

Dear Mr. Musk:

I write to seek clarification regarding your May 21, 2018 comments on Twitter regarding Tesla workers’ efforts to unionize at the plant in Fremont, California. Specifically, I request a commitment that you will refrain from violating Tesla workers’ federal rights under the National Labor Relations Act (NLRA).

On May 21, 2018, you tweeted the following: “Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw [sic] 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”

I found your comments to be troubling and want to make sure you are fully aware of federal labor law. As you may know, Section 7 of the NLRA gives 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”. Section 8(a)(1) outlaws any employer attempts to “interfere with, restrain, or coerce employees in the exercise of rights” guaranteed by Section 7.

Section 8(a)(1) prohibits a broad range of employer conduct, including more subtly coercive statements like those in your tweet. For example, in Monfort of Colorado, during a union organizing drive, an employer made similar statements: “If the union were to come into the plant, the profit sharing would probably not be there .. [but] if the union was not to go in there, our profit sharing would be good, it would probably be there.” The National Labor Relations Board ruled that these statements violated Section 8(a)(1) because they “unlawfully implied a probability that the [employer] would act differently with respect to profit sharing if the Union was voted in” and “had a reasonable tendency to coerce employees in the exercise of Section 7 rights and constituted an unlawful threat of economic reprisal to be taken solely on the [employer’s] own initiative for reasons related to union activity.”

Although it is the policy of the United States to encourage the practice of collective bargaining throughout industry, it appears particularly necessary when a company fails to ensure the basic physical safety of its employees. Collective bargaining agreements have used time and time again to improve health and safety standards in the workplace, benefitting employers and workers alike. I am concerned that the National Council for Occupational Safety and Health found that “Recordable injuries for workers at Tesla Motors were 31 percent higher than the rest of the automotive industry in 2015 and 2016.” The Los Angeles Times noted that in 2015, Tesla motors record of workplace safety incidents was higher than the rate for slaughterhouses and sawmills. In June 2017, Son Nguyen, a contract worker in your Fremont plant, was severely burned throughout his body while wiring an electrical plug for Tesla fueling stations. Injury logs for Tesla obtained by the investigative journalism website Reveal indicate that in 2017, four other employees at the Fremont plant suffered electrical burns.’ Another report by Reveal indicates that in April 2018, after Reveal began to inquire about your company’s official injury counts, Tesla added 13 more injuries to its official injury log for 2017 that had not been reported previously.’

In order to better understand your comments regarding unionization efforts at Tesla’s Fremont, California plant, I seek the following responses from you:

1. Will you refrain in the future from threatening your employees with retaliation for exercising federally protected rights, including but not limited to their Section 7 rights to join a union and bargain collectively?

2. Will you refrain in the future from stating or implying that employees will lose job related benefits if they choose union representation?

3. Given that you have already made statements violating Section 8(a)(1), I worry that you may soon violate Section 8(a)(3), which prohibits retaliation against employees (such as discipline or discharge) for exercising their Section 7 rights to join or support a union.’ Will you refrain in the future from adverse action against an employee for choosing to join or support a union?

4. Regarding the health and safety record at the Tesla plant, will you explain the thirteen injuries added to Tesla’s official injury log for 2017 that were not reported initially?

Thank you for your attention to this matter. I look forward to receiving your responses no later than June 15, 2018.

Sincerely,

Keith Ellison

Member of Congress

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