No, You Can’t Fire Employees for Threatening to Strike!

By Chad M. Horton - Shawe Rosenthal LLP

August 20, 2024

With less than three months until the 2024 presidential election, we are firmly entrenched in political silly season. Earlier this week, the United Auto Workers (UAW) union filed unfair labor practice charges against the campaign of Republican presidential nominee Donald Trump – which, of course, employs workers – and Tesla, Elon Musk’s automotive company. The charges stem from statements made during Musk’s Monday interview of Trump on Musk’s social media platform, X (nee Twitter).

The charges were wholly unrelated to the technical difficulties that substantially delayed the interview or the frequent glitching that happened throughout. Rather, the UAW alleges Trump’s statements concerning employee strikes violated Section 8(a)(1) of the National Labor Relations Act, which prevents employer threats or interference with workers’ rights, including the right to engage in strikes.

Specifically, Trump made the following statement:

“I mean, I look at what you do. You walk in, you say, ‘you want to quit?’ They go on strike, I won’t mention the name of the company, but they go on strike and you say, ‘that’s okay, you’re all gone. You’re all gone. So, every one of you is gone.’”

Federal labor law protects employees’ right to engage in economic strikes, and employees cannot be terminated for exercising that right – though they can be permanently replaced until their former position or a position for which they are qualified becomes available.

The next day, the UAW – which has formally endorsed Vice President Kamala Harris in the presidential race – filed a charge against Trump’s campaign, alleging that his statements infringed upon his campaign’s employees’ right to engage in strikes. (And if you believe employees on Trump’s campaign are inclined to engage in strikes irrespective of the former president’s comments, well, we have a bridge in the Brooklyn area that we’d like to discuss selling to you.)

Perhaps more unusually, the UAW also filed a charge against Tesla. The UAW and Tesla have a history of battles before the NLRB, largely owing to the UAW’s failed efforts to unionize the company. But the UAW’s theory of Tesla’s violation of the NLRA appears to be that Musk, who is an agent of Tesla, either agreed with – or at least did not dispute – Trump’s statements during the interview. Trump’s statements, however, did not explicitly mention Tesla or any of Musk’s other companies, such as SpaceX. (SpaceX, by the way, is currently arguing that the NLRB is unconstitutional before the Fifth Circuit.) Nor did Musk even address the issues of employees’ right to engage in strike activity during the interview.

The charges are reminiscent of the charge filed against Ben Domenech, the publisher of the conservative publication, The Federalist,who infamously tweeted that he would send any employee who attempted to unionize his publication “back to the salt mine.” While the NLRB found that the tweet violated the NLRA, the Third Circuit vacated the Board’s order on the basis that the NLRB disregarded the context of the tweet – that it was “facetious and sarcastic” – and failed to consider evidence that employees of The Federalist construed the tweet as a joke rather than a threat. We will wait to see if these charges face a similar fate.

While the UAW’s charges received their 15 minutes of publicity in the fast-evolving political news cycle, don’t expect these investigations to conclude quickly. Even if the NLRB finds there is merit to one or both charges, any litigation of such charges is likely to encounter procedural defenses such as the constitutionality of the NLRB itself – Trump arguing an agency he may soon again be responsible for overseeing is unconstitutional would be quite a subplot! And any Board order concluding such statements to be unlawful would almost certainly be appealed to a circuit court, which I’m sure comes as a relief to anyone who wishes to read more stories about Trump-related litigation.

Donald Trump doesn’t think much of employees’ right to strike. (You’re shocked, I know.) And the UAW may well be trying to score some political points and distract from recent news that UAW President Shawn Fain is under investigation by a court-appointed watchdog seeking to stamp out internal corruption within the UAW. (Again, hide your shock, please.)

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