Tesla v. NLRB ( 2023 )

Case: 21-60285 Document: 00516696764 Page: 1 Date Filed: 03/31/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 31, 2023
No. 21-60285
Lyle W. Cayce
Clerk
Tesla, Incorporated,
Petitioner Cross-Respondent,
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, AFL-
CIO,
Petitioner,
versus
National Labor Relations Board,
Respondent Cross-Petitioner.
Petition for Review of an Order of the
National Board of Labor Relation Board
NLRB Order No. 370 NLRB No. 101Before Dennis, Southwick, and Wilson, Circuit Judges.
Per Curiam:
This case arises from a tense union campaign at Tesla’s electric
vehicle manufacturing plant in Fremont, California. The United Auto
Workers union (“UAW”) and three pro-union Tesla employees filed
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multiple charges with the National Labor Relations Board (“NLRB”)
alleging unfair labor practices against Tesla. An Administrative Law Judge
(“ALJ”) found that Tesla had committed most of the alleged violations, and
the NLRB issued an order largely affirming the ALJ. Both Tesla and the
UAW filed petitions for review, and the NLRB filed a cross-application to
enforce its order.
Tesla and the UAW each challenge two of the NLRB’s findings
through this appeal.1 Tesla first challenges the NLRB’s finding that Tesla
CEO Elon Musk posted an unlawful threat on Twitter. In addition, Tesla
objects to the NLRB’s conclusion that employee Richard Ortiz was
unlawfully terminated. The UAW, on the other hand, appeals the NLRB’s
finding that Tesla did not unlawfully solicit and promise to remedy
grievances in response to a safety petition submitted by employees. The
UAW also contends that the NLRB abused its discretion in not ordering a
public notice-reading remedy. Yet the NLRB’s findings were supported by
substantial evidence, and it did not abuse its broad remedial discretion in
declining to issue a notice-reading remedy. We therefore DENY the
petitions for review, and GRANT the NLRB’s cross-application to enforce
its order.
I. Factual and Procedural Background
Tesla, Inc. (“Tesla”) is a “technology and design corporation” with
a car manufacturing facility in Fremont, California, where the alleged labor
violations in this case occurred. In the summer of 2016, Tesla employee Jose
Moran reached out to the International Union, United Automobile,
Aerospace, and Agricultural Implement Workers of America, AFL-CIO
(“UAW” or “Union”) because he was interested in unionizing Tesla
employees. As part of the unionization effort, the UAW created a Voluntary
1
On appeal, much of the NLRB’s order goes uncontested by either Tesla or the
UAW.
2
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Organizing Committee (“VOC”) of employees who acted as union
organizers. Along with Moran and others, Richard Ortiz, Jonathan Galescu,
and Michael Sanchez were VOC members. This appeal centers around three
separate incidents relating to efforts to unionize Tesla employees, which are
described below.
A. Tesla’s Response to the Safety Petition
As part of the UAW campaign at Tesla, employees who supported
unionization engaged in leafletting, distributed union paraphernalia, and
wore union jackets and shirts to work. Both Moran and Ortiz also spoke to
California state legislators to advocate on behalf of pro-union legislation.
Ortiz further requested safety records from the California Division of
Occupational Safety and Health, and employees requested safety statistics
from Tesla as well. In February 2017, Moran posted online an article
describing safety conditions and wages at Tesla and advocating for
unionization. The day after the article was posted online and gained
attention, union supporters handed out leaflets and copies of the article to
employees in the parking lot. The article prompted a companywide email
response from Musk to all Tesla employees two weeks later.
Between March and June 2017, VOC members (including Ortiz and
Moran) distributed a petition regarding safety conditions at Tesla. On June
6, Moran emailed Musk and Josh Hedges, a senior human resources director
for production and supply chain at Tesla, the safety petition on behalf of the
VOC. The email discussed the safety concerns in the petition and the belief
that a union would be the best way to improve safety, and requested a written
response from Tesla to Moran. Moran also hand-delivered a copy of the
petition to Hedges.
3
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On June 7, 2017, Musk and Gaby Toledano, Tesla’s “chief people
officer,”2 met with Moran and another employee, Tony Vega, to discuss the
safety petition. During the meeting, Moran and Vega shared their safety
concerns and desire to unionize; Toledano invited them to attend Tesla’s
weekly safety committee meeting to share their concerns. Musk added that if
the safety committee meetings did not work out, “we’ll give you your
union.” According to an email from Hedges, the safety committee meetings
referenced during the June 7 meeting “are recurring and part of [Tesla’s]
existing safety review process,” and are voluntary and open to “all
employees.” About a week after the meeting, Musk, Toledano, and others
discussed via email having union supporters join Tesla’s safety team full-time
in order “to turn adversaries into those responsible for the problem,” and to
transition some of the more vocal union organizers into salaried safety team
positions so that they would be considered part of management and thus
unable to advocate for unionization.
B. Tesla’s Termination of Ortiz
In September 2017, three Tesla employees—including Travis Pratt,
who was not a union supporter—went to the California legislature at the be-
hest of Tesla to testify at a public hearing against legislation supported by the
UAW. Ortiz and others had gone to the legislature the previous month to
advocate for the proposal. Ortiz did not attend the hearing and had difficultly
accessing a video recording, so he sent a link to Moran and asked if Moran
could open the video and if he knew who the three employees were. Using
his personal phone, Moran watched the video, noted the names of the
2
As “chief people officer,” Toledano was in charge of overseeing day-to-day
operations, as well as the environmental health and safety team; she reported directly to
Musk.
4
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employees, and used Tesla’s “Workday” program3 to search for the employ-
ees’ names to verify that they were Tesla employees. Moran took screenshots
of the Workday profiles of the three employees and sent them to Ortiz. The
Workday profiles included a photo of each employee. At the time, Tesla had
no policy prohibiting such use of Workday or otherwise restricting access to
the program.
Ortiz posted two of the screenshots—including a screenshot of Pratt’s
profile—to a private “Tesla Employees for UAW Representation” Face-
book page4 and included a comment that the pictured employees were “in
Sacramento saying we are lying about how things are at Tesla.” Ortiz noted
that Pratt said at the public hearing that his salary was $130,000, and com-
mented, “[t]his just proves how much kissing ass and ratting on people get
you at Tesla and the ones that do the real work get passed over.” Though the
Facebook group was private, and Pratt was not a member, someone sent him
the post. Pratt then sent Ortiz a message, objecting to the “name calling,”
after which Ortiz quickly removed the post from Facebook.
Pratt also sent a text message and a screenshot of the post to Hedges.
Pratt’s text message said, referring to the testimony in Sacramento, “[l]ooks
like we got under some people’s skin,” followed by a smiley face. Hedges
asked whether the post was on Facebook, and Pratt responded, “Yea lol
[laugh out loud] I’m pretty sure its on their fair future at Tesla thing.” Pratt
3
“Workday is a third-party HR software program that [Tesla] uses to
electronically store and access employees’ personnel files. Employees can access Workday
to, among other things, view and electronically sign documents.”
4
Employees interested in unionizing voted on a campaign slogan, “Driving a Fair
Future at Tesla,” and the UAW created a public website and public Facebook group, “A
Fair Future at Tesla,” in support of its campaign. Moran also created a private, not
publicly-viewable Facebook group called “Tesla Employees for UAW Representation.”
While the public group could be joined and viewed by anybody on Facebook, access to the
private group was restricted and required approval from Moran or Ortiz.
5
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also allegedly told Hedges by phone that he felt harassed and targeted be-
cause of the Facebook post.5 After speaking with Pratt, Hedges submitted a
complaint to Tesla’s employee-relations team and contacted Tesla investiga-
tor Ricky Gecewich about the situation. A few days later, Gecewich inter-
viewed Pratt, who repeated his story.
Gecewich also interviewed Ortiz, who said he apologized and re-
moved the post after Pratt contacted him. Gecewich then asked where the
pictures came from and Ortiz said he could not remember, which he later
admitted was a lie. Gecewich obtained logs of who had viewed Pratt’s Work-
day profile and identified Moran. Gecewich met with Moran, who said he
accessed Pratt’s Workday profile to confirm that he was a Tesla employee
after seeing his testimony at the legislature. Moran told Gecewich that he
needed to identify anti-union employees as part of the unionization cam-
paign. He also told Gecewich he sent the screenshots to Ortiz. Gecewich met
with Ortiz again, and Ortiz admitted that he had lied to protect Moran’s iden-
tity.
Gecewich wrote a report that recommended firing Ortiz for “admit-
tedly lying,” and disciplining Moran “for accessing Workday for non-busi-
ness related purposes.” The report said Moran claimed he was asked by a
UAW representative to verify whether Pratt and others were Tesla employ-
ees. The report also said that Moran had admitted to using Workday for other
personal purposes in the past—for example, to compare his title to other em-
ployees. Hedges agreed with Gecewich’s recommendations and chose
Stephan Graminger, Tesla’s Director of Body Manufacturing, to be the ulti-
mate decisionmaker as to Ortiz.
5
Pratt did not testify before the ALJ. Ortiz, Hedges, Moran, and Gecewich did.
The ALJ found Moran credible, found Ortiz credible in part, and found Hedges and
Gecewich not credible, giving reasons for each credibility finding.
6
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Gecewich met with Graminger, along with Ortiz’s direct manager,
Juan Martinez, and another HR official. Gecewich told Graminger that Ortiz
had leaked personal information and lied during the investigation. Graminger
did not make an immediate decision, but first asked his superior, Peter Hoch-
holdinger, whether similar cases involving lying during an investigation had
resulted in termination and was told that, according to personnel policy, lying
resulted in termination. After receiving this information, Graminger ap-
proved the decision to fire Ortiz.6 Ortiz’s employment at Tesla was termi-
nated on October 18, 2017. Ortiz’s termination was not based on any specific
HR policy.
C. Elon Musk’s Twitter Activity
Elon Musk maintains the Twitter handle “@elonmusk” as his
personal account, and uses it to tweet7 about Tesla’s business decisions and
plans, finances, production goals, personnel matters, and breaking news. On
May 20, 2018, Musk tweeted:
Nothing stopping Tesla team at our car plant from voting un-
ion. 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.
Musk’s tweet was in response to another user, @dmatkins137, who asked
Musk, in part, “How about unions?” Over the next few days, other users and
Musk interacted on the same “thread”8 of tweets, as well as on an additional
6
The ALJ found Graminger to be a “more credible witness” than Hedges and
Gecewich.
7
“[T]he social media platform Twitter allows its users to publish short messages,
photographs, videos, and hyperlinks (all called ‘tweets’) to the general public. Other users
may respond to or republish those tweets and engage in virtual dialogues with other users
on the platform.” Campbell v. Reisch, 986 F.3d 822, 823 (8th Cir. 2021).
8
When one looks at a tweet, “[a] comment thread appears below the original tweet
and includes both the first-level replies (replies to the original tweet) and second-level
replies (replies to the first-level replies).” Knight First Amendment Inst. at Columbia Univ.
7
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thread. In later tweets posted several days after the May 20 post, Musk stated
that he believed that the “UAW does not have individual stock ownership as
part of the compensation at any other company,” and as such, Tesla
employees would lose stock options if they unionized because “UAW does
that.” None of the Twitter users that Musk interacted with during these
tweets were Tesla employees.
On May 23, 2018, the UAW filed an unfair-labor-practice charge
based on the May 20 tweet, alleging that the tweet was a threat to rescind
stock options if employees unionized in violation Section 8(a)(1) of the
National Labor Relations Act (“NLRA”).
D. The Current Proceedings
The UAW, Ortiz, and two other employees (Galescu and Sanchez)
filed multiple unfair-labor-practice charges with the NLRB, and the NLRB’s
General Counsel filed complaints against Tesla alleging violations of the
NLRA. After a 13-day trial, the ALJ issued a recommended decision and
order against Tesla on most of the alleged violations.
Both Tesla and the UAW filed exceptions with the NLRB. A three-
member panel of the NLRB reviewed the ALJ’s findings and issued a
decision and order. The NLRB affirmed most of the ALJ’s findings,
dismissed several allegations, and modified the order against Tesla
accordingly. Both Tesla and the UAW filed petitions for review; the NLRB
filed a cross-application to enforce its order.
II. Legal Standards
“Judicial review of NLRB decisions and orders is limited and
deferential.” In-N-Out Burger, Inc. v. NLRB, 894 F.3d 707, 714 (5th Cir.
v. Trump, 928 F.3d 226, 230 (2d Cir. 2019), vacated as moot, 141 S. Ct. 1220 (2021). Twitter
threads thus “reflect multiple overlapping conversations among and across groups of users
and are a large part of what makes Twitter a social media platform.” Id. (citation and
quotation marks omitted).
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2018). The NLRB’s factual findings are “conclusive” so long as they are
“supported by substantial evidence on the record considered as a whole.” 29
U.S.C. § 160(e). “Substantial evidence is that which is relevant and sufficient
for a reasonable mind to accept as adequate to support a conclusion. It is more
than a mere scintilla, and less than a preponderance.” IBEW, Loc. Unions 605
& 985 v. NLRB, 973 F.3d 451, 457 (5th Cir. 2020) (citation omitted). “The
court may not make credibility determinations or reweigh the evidence, and
should defer to the plausible inferences the Board draws from the evidence,
even if the court might reach a contrary result were it deciding the case de
novo.” Id. (cleaned up). “Only in the most rare and unusual cases will an
appellate court conclude that a finding of fact made by the [NLRB] is not
supported by substantial evidence.” Flex Frac Logistics, L.L.C. v. NLRB, 746
F.3d 205, 208 (5th Cir. 2014) (citing Merchs. Truck Line, Inc. v. NLRB, 577
F.2d 1011, 1014 n. 3 (5th Cir. 1978)).
The NLRB’s legal conclusions are reviewed de novo. Id. at 207.
However, this court “accord[s] Chevron deference to the Board’s
interpretations of ambiguous provisions of the NLRA,” and “will uphold the
Board’s interpretations ‘so long as [they are] rational and consistent with the
Act.’” IBEW, 973 F.3d at 457 (quoting D.R. Horton, Inc. v. NLRB, 737 F.3d
344, 349 (5th Cir. 2013) (citation omitted)). “In recognition of the Board’s
primary responsibility for administering the Act and its expertise in labor
relations, we give significant deference to the Board’s application of the law
to the facts[.].” In-N-Out Burger, Inc, 894 F.3d at 714. The NLRB’s choice
of remedy “must be upheld unless it can be shown that the board either
abused its discretion or exceeded its statutory authority.” NLRB v. Kaiser
Agric. Chem., 473 F.2d 374, 382 (5th Cir. 1973). “The close relationship
between labor policy and choice of remedy, coupled with the board’s
competence and expertise in the field of labor relations, dictate that the
board’s judgment be given ‘special respect by reviewing courts.’” Id.(quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n.32 (1969)).
9
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III. Discussion
Because the NLRB is entitled to summary enforcement of the
uncontested portions9 of its order, we address only the four issues raised by
Tesla and the UAW in this appeal. Remington Lodging & Hosp., L.L.C. v.
NLRB., 847 F.3d 180, 186 n.24 (5th Cir. 2017) (challenges not raised in a
petitioner’s opening brief are waived). First, Tesla argues that the NLRB
erred in finding that Tesla CEO Elon Musk’s May 20, 2018, tweet that
mentioned stock options constituted threatening employees with loss of
benefits if they unionized in violation of the NLRA. Second, Tesla contends
that the NLRB erred in concluding that Tesla violated the NLRA by firing
Ortiz. Third, the UAW challenges the NLRB’s finding that Tesla did not
violate the NLRA by soliciting and promising to remedy grievances during
the June 7 meeting. Finally, the UAW argues that the NLRB abused its
discretion in not ordering a notice-reading remedy. We address each of these
issues in turn.
A. Elon Musk’s Twitter Activity
The ALJ found that Musk’s tweet10 violated Section 8(a)(1) because
it could only be reasonably understood by employees as a threat to unilater-
ally rescind stock options if employees unionized, rather than as a carefully
9
Specifically, the NLRB asserts that it is entitled to summary enforcement of its
order pertaining to the following violations: (1) interfering with employee leafletting; (2)
prohibiting employees from distributing union materials without approval/threatening
them with discharge; (3) threatening that selecting the UAW would be futile; (4)
prohibiting employees from communication with the media about their employment; (5)
interrogating certain employees about union activity; (6) promulgating a rule restricting
Workday use in response to Ortiz and Moran’s union activity; and (7) disciplining Moran
for his union activity. We agree, and GRANT the NLRB’s petition to enforce its order in
this regard.
10
As explained above, the tweet at issue stated “[n]othing 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.”
10
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phrased prediction, based on objective fact, of the likely consequences of un-
ionization beyond Tesla’s control. The NLRB affirmed the ALJ’s findings
and ordered Musk to delete the tweet. Tesla argues that the tweet, especially
when viewed in context, was not a threat and was instead protected by Sec-
tion 8(c) of the NLRA and the First Amendment.
Initially, the parties dispute the standard of review applicable to the
NLRB’s factual findings. Tesla argues that the court should conduct a de
novo, non-deferential review of the facts. Yet binding precedent requires us
to apply the substantial evidence standard of review to factual findings as to
whether a written statement is reasonably understood as a threat or tends to
be coercive. See Gissel, 385 U.S. at 619–20 (referring to written materials);
NLRB. v. Riley-Beaird, Inc., 681 F.2d 1083, 1086–87 (5th Cir. 1982) (applying
substantial evidence standard of review to speech issue); NLRB. v. Man-
gurian’s, Inc., 566 F.2d 463, 466–67 (5th Cir. 1978) (simultaneously analyzing
employer’s argument that its statements were protected by NLRA Section
8(c) and the First Amendment).
“An unlawful threat is established under § 8(a)(1) [of the NLRA], if
under the totality of the circumstances, an employee could reasonably con-
clude that the employer is threatening economic reprisals if the employee
supports the union.” NLRB v. Delta Gas., Inc., 840 F.2d 309, 311 (5th Cir.
1988). “The test for determining ‘whether an employer has violated § 8(a)(1)
is whether the employer’s questions, threats or statements tend to be coer-
cive, not whether the employees are in fact coerced[.]’” Brown & Root, Inc.
v. NLRB, 333 F.3d 628, 634 (5th Cir. 2003) (quoting NLRB v. PNEU Electric,
Inc., 309 F.3d 843, 850 (5th Cir. 2002)). Whether an employer is making an
unlawful threat is measured objectively, from the perspective of an employee,
and is not contingent on “either the motivation behind the remark or its ac-
tual effect.” Miller Elec. Pump & Plumbing, 334 NLRB 824, 824 (2001); Brown
& Root, Inc., 333 F.3d at 634 (stating that the test “is whether the employer’s
questions, threats or statements tend to be coercive, not whether the employ-
ees are in fact coerced”).
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Section 8(c) of the NLRA states that “[t]he expressing of any views,
argument, or opinion, or the dissemination thereof . . . shall not constitute or
be evidence of an unfair labor practice under any of the provisions of this sub-
chapter, if such expression contains no threat of reprisal or force or promise
of benefit.” 29 U.S.C. § 158(c). To fall outside Section 8(a)(1), then, an em-
ployer’s prediction of the effects of unionization “must be carefully phrased
on the basis of objective fact to convey an employer’s belief as to demonstra-
bly probable consequences beyond his control.” Gissel, 395 U.S. at 618. If the
employer’s statement instead carries “any implication that an employer may
or may not take action solely on his own initiative” in response to unioniza-
tion, then it may be a “threat of retaliation.” Id. Thus, a statement implying
that unionization will result in the loss of benefits, without some explanation
or reference to the collective-bargaining process, economic necessity, or
other objective facts, is a coercive threat, while such a statement is not a
threat if made in the context, for example, of explaining that existing benefits
may be traded away during the bargaining process. UNF W., Inc. v. NLRB,
844 F.3d 451, 458 (5th Cir. 2016).
While the NLRA “implements the First Amendment” and demon-
strates “congressional intent to encourage free debate on issues dividing la-
bor and management,” that free debate is not without limits. Chamber of Com.
of U.S. v. Brown, 554 U.S. 60, 67 (2008) (quoting Linn v. Plant Guard Work-
ers, 383 U.S. 53, 62 (1966)); see also Gissel, 395 U.S. at 618 (“[A]n employer
is free to communicate to his employees any of his general views about un-
ionism or any of his specific views about a particular union, so long as the
communications do not contain a ‘threat of reprisal or force or promise of
benefit.’”).
Tesla first argues that Musk’s May 20, 2018, tweet “was not threat-
ening on its face” because the tweet started out by saying that there was
“[n]othing stopping” employees from unionizing and it is a strain to charac-
terize “give up stock options for nothing” as a threat, because, unlike the
threat of plant closure, compensation is not within the employer’s unilateral
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control once employees unionize and the parties engage in collective bargain-
ing. However, because stock options are part of Tesla’s employees’ compen-
sation, and nothing in the tweet suggested that Tesla would be forced to end
stock options or that the UAW would be the cause of giving up stock options,
substantial evidence supports the NLRB’s conclusion that the tweet is as an
implied threat to end stock options as retaliation for unionization. Moreover,
the statement in the tweet is materially similar to other statements that the
NLRB and our court have found to be threats. See, e.g., NLRB v. Bama Co.,
353 F.2d 320, 323 (5th Cir. 1965) (supervisors threatened “unionization
would probably result” in lost benefits); Hendrix Mfg. Co. v. NLRB, 321 F.2d
100, 104 (5th Cir. 1963) (“if the Union came in, the current profit sharing
plan would be discontinued”); Intermedics, Inc., 262 NLRB 1407 (1982), en-
forced by NLRB v. Intermedics, Inc., 715 F.2d 1022 (5th Cir. 1983) (“if the
Company were to go union the employees would lose all their benefits”).
Tesla next argues that the tweet was not a threat because it was
grounded in the objective fact that UAW-represented employees at other
companies supposedly do not have stock options. But the test is whether the
tweet would have been reasonably understood by employees as a threat and
therefore whether it tended to be coercive, not whether employees would
have been able to independently verify that the tweet was based in objective
fact. Brown & Root, 333 F.3d at 634. Moreover, the tweet itself did not include
any objective facts that would lead a reasonable employee to conclude that
the UAW, rather than Tesla, would be the cause of employees giving up stock
options.
Lastly, Tesla argues that the May 20, 2018, tweet is not a threat when
placed within the context of the same Twitter thread as a whole, as well as a
related Twitter thread, and a later press release.11 Tesla argues that the ALJ
11
As explained above, on May 22, 2018, two days after the initial tweet, Musk was
asked by another Twitter user, in a reply to his initial May 20 tweet, “[a]re you threatening
to take away benefits from unionized workers?”, to which he responded “No, UAW does
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erred by not analyzing the tweet in the context of later tweets and communi-
cations, which demonstrate that Musk believed the UAW would take away
stock options and clarified that the original tweet was not a threat. First,
Musk’s later tweets and publications were not “contemporaneous,” and
thus cannot change whether the original tweet was a threat. UNF W., Inc.,
844 F.3d at 458 (“contemporaneous or earlier contextual factors can influ-
ence a statement’s reasonable import for the listener at the time that the
statement was uttered” (citation omitted)). Second, although “additional
comments can be made to clarify, expand, or otherwise alter the context and
reasonable import” of the original tweet, the parties’ stipulated that “[i]t is
not possible to know or determine if every individual that viewed the tweets
by Elon Musk [on] May 20 also viewed the tweets by Elon Musk [from] May
22 and 23,” id., and Tesla’s history of labor violations supports the NLRB’s
finding that employees would understand Musk’s tweet as a threat to commit
another violation by rescinding stock options as retaliation.
Based on the foregoing, we DENY Tesla’s petition for review, and
GRANT the NLRB’s cross-application for enforcement of its order that
Musk delete the tweet.
B. Tesla’s Termination of Ortiz
The ALJ determined that Tesla violated Section 8(a)(1) and (a)(3) of
the NLRA by terminating Ortiz. First, the ALJ found that Ortiz and Moran
were engaged in “protected concerted activity” when Moran sent the
Workday profile screenshots to Ortiz, and further, that Ortiz reasonably
understood that Gecewich was inquiring about those protected activities.
Alternatively, the ALJ also analyzed the termination under the Wright Line
that.” The next day, May 23, writing on a different Twitter thread, Musk tweeted “UAW
does not have individual stock ownership as part of the compensation at any other
company.”
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“mixed-motive” framework12 and found that union activity was a motivating
factor in his discharge and that Tesla’s reason for the termination was
pretextual.
“[A]n employer violates section 8(a)(3) and (1) of the Act by
discharging employees because of their union activity.” NLRB v. ADCO
Elec. Inc., 6 F.3d 1110, 1116 (5th Cir. 1993). While an employer has a legitimate
right to investigate “facially valid complaints of employee misconduct,
including complaints of harassment,” the NLRA also protects an employee’s
right to keep his or her union activities confidential, even if that means giving
evasive or untruthful answers in response to an employer’s questions that an
employee reasonably believes are inquiries into protected union activity.
Fresenius Usa Mfg., Inc., 362 NLRB 1065, 1065 (2015); Paragon Sys., Inc. &
Arthur J. Blake, 362 NLRB 1561, 1565 (2015). Accordingly, “an employer
cannot avoid liability by pointing to evasive statements by an employee in
response to questioning ‘inextricably involved’ with the employee’s
protected conduct.” Cordua, 985 F.3d at 429.
On appeal, Tesla maintains that the NLRB’s decision that Ortiz’s
termination was an unfair labor practice is not supported by substantial
evidence because he was fired for cause—lying during an investigation into
workplace misconduct. Tesla argues that the NLRB failed at Wright Line step
one to prove union animus, and that Ortiz was fired for a legitimate reason at
step two—lying during an investigation into employee misconduct. Apart
from the Wright Line framework, Tesla argues that the NLRA does not
protect employees who lie during investigations into workplace misconduct.
However, substantial evidence supports the NLRB’s determination that
12
When an employer gives a facially lawful reason for discharging an employee, the
employer’s motivation is analyzed under the two-step Wright Line framework. Wright Line,
A Div. of Wright Line, Inc., 251 NLRB 1083 (1980). “Under this framework, an employer’s
termination of an employee violates Section 8(a)(1) if the employee’s protected conduct
was a motivating factor in the decision to discharge the employee.” Cordua Restaurants,
Inc. v. NLRB, 985 F.3d 415, 423 (5th Cir. 2021).
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Ortiz was fired for lying about protected union activity and not related to his
job performance or Tesla’s legitimate business interests or workplace rules,
and that union animus motivated—at least in part13—the complaint,
investigation, and decision to terminate Ortiz.
Indeed, the ALJ found that the shift in the focus of the investigation
from the alleged harassment caused by the Facebook post to the identity of
who accessed Workday was circumstantial evidence of union animus. The
ALJ based this finding on other unfair labor practices established on the
record, as well as the fact that the aim of Gecewich’s investigation was union
activity since Gecewich knew the context within which the Facebook post
and Workday use occurred, and the purpose of his questioning was to
discover the identity of Ortiz’s fellow pro-union colleague, Moran—
information that Tesla did not have a legitimate right to discover, considering
that Tesla had no rule restricting use of Workday. The ALJ also identified
errors in Gecewich’s report to Graminger, including an incorrect allegation
that Ortiz publicly disclosed confidential employee information. The ALJ
also found the initial complaint of harassment from Pratt to Hedges (and
Hedges’s complaint to Gecewich) to be disingenuous given the content of
Pratt’s text messages to Hedges.14
Substantial evidence thus supported the finding that discriminatory
animus motivated Tesla’s termination of Ortiz because Graminger relied on
Gecewich’s investigation (initiated by Hedges’s complaint) and
recommendation, and the ALJ plausibly found that union animus motivated
the complaint, the investigation, and the decision to terminate Ortiz. Tesla
has not presented a sufficient basis for displacing the NLRB’s finding of
discriminatory intent, especially in light of this court’s special reluctance to
13
Motivation can be inferred from circumstantial evidence, and union animus need
not be the sole motivating factor. Cordua, 985 F.3d at 429.
14
The NLRB affirmed the ALJ’s factual findings.
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overturn factual findings of discriminatory motive or intent. See N.L.R.B. v.
Brookwood Furniture, Div. of U.S. Indus., 701 F.2d 452, 464 (5th Cir. 1983)
(“a reviewing court may not lightly displace the Board’s factual finding of
discriminatory intent”).
For the above reasons, we DENY Tesla’s petition for review, and
GRANT the NLRB’s cross-application for enforcement of its order that
Ortiz be reinstated with backpay.
C. Tesla’s Response to the Safety Petition
The ALJ found that, at the June 7, 2017, meeting regarding Moran’s
safety petition, Tesla solicited grievances from Moran and Vega and
implicitly promised to remedy those grievances, and in doing so, violated
Section 8(a)(1). The NLRB, however, disagreed with the ALJ and did not
adopt her findings on this alleged violation, instead finding no violation. In its
petition for review, the UAW argues that the NLRB’s decision is not
supported by substantial evidence.
An employer violates Section 8(a)(1) if it solicits and promises to
remedy employee grievances during a union campaign. NLRB v. Pope Maint.
Corp., 573 F.2d 898, 905 (5th Cir. 1978). However, there is no violation unless
the employer promises the benefit of remedying the grievance. See Riley-
Beaird, Inc., 681 F.2d at 1086–87. When an employer begins a new policy of
soliciting grievances in response to union activity, an inference can be made
that there is an implied promise to resolve them, in violation of the NLRA.
Capitol EMI Music, 311 NLRB 997, 1007 (1993); Reliance Elec. Co., 191 NLRB
44, 46 (1971). However, no violation occurs if the employer merely maintains
a past practice regarding employee grievances. Kingsboro Med. Grp., 270
NLRB 962, 963 (1984).
The NLRB found that Tesla neither solicited the grievances nor
promised to remedy them, and thus did not violate the NLRA. The UAW
challenges the NLRB’s conclusion based on the unusual nature of a meeting
with the CEO of the company, and the emails between Musk, Toledano, and
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others that discuss the idea of neutralizing union organizers like Moran by
making them managers. The UAW also argues that the NLRB erred because
Musk’s statements during the meeting constituted an unlawful request for a
“second chance” before unionization, in violation of the NLRA.
Contrary to the UAW’s contentions, however, the NLRB’s
determinations are supported by substantial evidence. The NLRB found that
Tesla did not unlawfully solicit the employees’ safety grievances because the
June 7 meeting was prompted by the safety petition delivered by Moran the
previous day, and because Musk’s statement that “we’ll give you your
union” if the weekly safety committee meeting did not work out, did not
convey an implied promise to remedy those concerns. Nat’l Micronetics, 277
NLRB 993, 993 (1985) (vague statements that express general desire to do
better do not rise to level of illegal promise); Noah’s New York Bagels, Inc.,
324 NLRB 266, 267 (1997) (same). Moreover, Tesla had a pre-existing
practice of holding safety committee meetings and inviting employees to
attend, and there is no evidence that the safety committee meetings were
created in response to the petition or the June 7 meeting. Kingsboro Med. Grp.,
270 NLRB 962, 963 (1984) (“employer who has had a past policy and
practice of soliciting employee grievances may continue such a policy and
practice during a union’s organizational campaign”).
Because the NLRB’s decision is supported by substantial evidence
and its interpretation of the evidence is plausible, we DENY the UAW’s
petition for review of this decision.
D. The Notice-Reading Order
The ALJ’s recommended decision and order included a notice-
reading remedy requiring that an NLRB-provided notice be read aloud to
Tesla employees at the Fremont facility either by Musk himself or by a NLRB
employee with Musk present. The NLRB amended the ALJ’s remedy to
remove the notice-reading requirement, determining that a notice-reading
remedy was “neither necessary nor appropriate to remedy the violations”
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because “the Board’s traditional remedies will suffice.” On appeal, the
UAW argues that the NLRB abused its discretion in not ordering a notice
reading.
Section 10(c) of the NLRA confers broad remedial discretion upon the
NLRB. 29 U.S.C. § 160(c); Fibreboard Paper Prod. Corp. v. NLRB, 379 U.S.
203, 216 (1964) (“The Board’s [remedial] power is a broad discretionary one,
subject to limited judicial review.”). Nonetheless, public notice reading is an
“extraordinary remedy.” UNF W., Inc., 844 F.3d at 463. The NLRB will
order a notice-reading remedy “where the violations are so numerous and
serious that the reading aloud of a notice is considered necessary to enable
employees to exercise their Section 7 rights in an atmosphere free of
coercion, or where the violations in a case are egregious.” U.S. Postal Serv.,
339 NLRB 1162, 1163 (2003).
The UAW argues that a notice-reading remedy is necessary because
of the numerous unfair-labor practices found in this case, some involving the
direct involvement of high-level management, including CEO Elon Musk.
The UAW cites no authority mandating a notice reading to remedy repeated
violations in the absence of intervening cease-and-desist orders. And, as
Tesla emphasizes, the company at most continued to commit violations after
having a complaint filed against it, not after being ordered to cease its
conduct. Cf. UNF W., Inc., 844 F.3d at 463 (notice-reading remedy
warranted because employer committed “second round” of violations after
ALJ ordered it to cease “the same problematic conduct” in a previous case);
Fallbrook Hosp. Corp., 360 NLRB 644, 658 (2014) (explaining that notice-
reading remedy was warranted in earlier case that “involved multiple rounds
of litigation, including a previous order to set aside an election”). Moreover,
given the deferential standard of review and the “special respect” given to
the NLRB’s choice of remedy in light of its policy expertise and its broad,
discretionary remedial powers, we decline to disturb the NLRB’s order in
this regard. See Gissel, 395 U.S. at 612 n.32; Kaiser Agric. Chem., 473 F.2d at
382.
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The UAW’s petition for review of the NLRB’s removal of the notice-
reading remedy is DENIED.
IV. Conclusion
For the foregoing reasons, we DENY the petitions for review, and
GRANT the NLRB’s cross-application to enforce its order.
20