Under the National Labor Relations Act, companies are forbidden from using retaliation or coercion when they attempt to suppress unionization. It is illegal to terminate you, demote you, discipline you or penalize you in any way because you attempted to form, join or assist a union.
Your employer is also prohibited from making threats or offering bribes, coercively questioning workers, spying on workers or giving the appearance of doing so.
Notably, the National Labor Relations Board (NLRB) sometimes finds that actions that appear to be retaliatory are indeed retaliatory even when the company claims the action was taken for another, legitimate reason.
This recently happened in the case of the unionization at Tesla. Richard Ortiz had been trying to organize a union at the company, including passing out leaflets in the parking lot at the company’s Fremont, California, plant. He was fired in October 2017. Tesla said it was because he had posted screenshots of other employees’ internal profiles to Facebook.
Now, the NLRB has upheld an administrative law judge’s ruling that the firing was actually in retaliation for Ortiz’s unionization efforts.
Another employee had also taken screenshots and sent them to Mr. Ortiz, and the judge said that Tesla had acted illegally when it issued him a warning.
Tweet received as a threat
The board also found that Elon Musk had been illegally threatening employees’ compensation when he tweeted, “why pay union dues & give up stock options for nothing?” This was taken as a threat to withdraw employee stock options if the union were approved.
Finally, the board also found that Tesla has an illegal confidentiality agreement. The agreement, which employees are required to sign, prohibits workers from talking to the media without authorization even on public issues that involve Tesla. The board ruled that Tesla must amend its agreement to remove that clause.
We’re seeing a lot of pro- and anti-union activity in the United States. As many workers consider the advantages of bringing in unions, companies are increasingly cracking down on unionization efforts.
Unionization works. Unfortunately, retaliation for attempting to unionize is real. If you are receiving substantial push-back from your employer on unionization, talk to a labor law attorney.