Shaun Richman

The United Auto Workers union (UAW) slapped billionaire gadfly Elon Musk with charges of violating federal labor law in a stupid tweet last week. Musk owns the unprofitable luxury electric car manufacturer Tesla Motors, which the UAW has been unsuccessfully trying to organize.

Tesla has previously been scrutinized over allegations of “excessive mandatory overtime,” a lack of workplace safety and union busting. Musk’s tweet suggesting that Tesla workers would lose their stock options in the company if they voted for union representation raised eyebrows and prompted the UAW to file an Unfair Labor Practice Charge over the retaliatory threat. Speaking to Bloomberg news, former NLRB chair Wilma Liebman said, “If you threaten to take away benefits because people unionize, that’s an out-and-out violation of the labor law.”

The dumb tweet was fired off in the middle of a surreal “It’s 2018 and, yes, this is actually happening” social media meltdown that was sparked the revelation that the 46-year-old capitalist mogul who looks like his name sounds has been secretly dating the pop star Grimes.

Somehow this led to Grimes tweeting a defense of Tesla’s union busting. (As writer Brandy Jensen quipped in a tweet of her own: on a scale of “said you liked his band” to “publicly defended his union busting” what’s the most embarrassing thing you’ve done for a boyfriend) In the resulting Twitter conversation from Hell, Musk – who, again, is a billionaire and has on a scale of “said you liked his band” to “publicly defended his union busting” what’s the most embarrassing thing you’ve done for a boyfriendnearly 30 million followers on the platform – responded to the gentle chiding of someone with .00004% of his social media reach with this gratuitous gem:

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.

— Elon Musk (@elonmusk) May 21, 2018

Musk’s online meltdown has also included attacks on the credibility of the press, along with a threat to create some sort of Rotten Tomatoes-style website to rate the truthiness of various media outlets. Hilariously, he wanted to name it Pravda – Russian for “truth” – after the infamous Soviet newspaper. After his “grand” announcement Musk found out that the domain name was taken because Pravda still publishes and they’d like to keep their name, thank you very much.

As of this writing, Musk’s latest train wreck is a tweet suggesting that the real problem with the media is, and I quote, “Who do you think owns the press? Hello.” (The belief that the media is owned and controlled by a Jewish conspiracy is an anti-Semitic trope that won’t die, and Musk’s tweet was celebrated by hundreds – if not thousands – of literal Nazis who joined the thread from Hell because it’s 2018 and this sort of thing happens now.)

Not only was Musk’s anti-union tweet arrogant and gratuitous, it was the dumbest, clumsiest technical violation of labor law that every dipshit front-line supervisor makes before the professional union-busters get in there and teach them proper Newspeak.

For Elon Musk’s benefit – and everyone’s– here’s how union negotiations actually work.

The moment that workers form a bargaining unit and successfully vote for union representation, a status quo of pay, benefits and working conditions sets in. This is regardless of whether the union was formed through an election certified by the National Labor Relations Board (NLRB) or through voluntary card check recognition by the employer.

That’s because the only thing that unionizing workers win on Day One is a seat at the bargaining table. The employer is legally compelled to negotiate “in good faith” over the union’s (that is, the workers’) demands for the changes they’d like to see at work. Likewise, the employer must negotiate with the union over any changes it wants to make. In fact, there’s some case law at the NLRB that the status quo sets in as soon as a union organizing drive goes public and a union demands recognition as the representative of the workers.

So, nothing “goes away” when workers form a union. There’s nothing automatic about the changes to the benefits package or work rules. Both sides must negotiate them all.

Now ask yourself, if there was a benefit that employees enjoy – like, say, stock options – how would they even wind up on the table, much less surrendered or bargained away? What group of democratically elected representatives is going to suggest getting rid of a popular benefit?

Popular items wind up on the chopping block because vindictive employers put them there. It is very common for employers to carry over their union busting campaign into negotiations for a first contract. So the boss comes into bargaining with a laundry list of benefits to be pruned, new surveillance and drug tests that need to be instituted and all kinds of “flexibility” around pay and scheduling that he needs to stave off those suddenly-pending layoffs.

And that’s why Elon Musk’s tweet is illegal. He’s not predicting the future, or explaining the UAW’s “Big 3” contracts. He’s telling his workers, “Hey, you can form a union but I’ll be damned if I keep giving you ungrateful S.O.B.s an ownership stake in the company.”

It was an unmistakable threat.

Now, do popular benefits and work rules get traded away in bargaining? Sure, it happens. But here’s the thing: in order for a contract to get signed and be in effect it must be ratified by the workers who are subject to its terms. When a union member is voting on whether to accept a deal or not, she is weighing the entire package. Do the wage increases and new health insurance with lower co-pays outweigh the fact that, for example, the nurses now have to pay the same parking fee as the cafeteria workers, or that the kitchen staff can no longer haul off with a case of beer each week, no questions asked? And, is the entire package worth the cost of the union dues members will soon be paying?

If the answer is no, it’s hard to imagine how a majority of workers would vote to approve such a deal. This is not abstract hair-splitting. Half of all bargaining units that vote in favor of unionization wind up with no contract and ultimately no union rights.

Forming a union is a process of bringing some much-needed democracy into the workplace. Workers have real and meaningful control over what they’re demanding and how they go about trying to win it. Without a union a workplace is a literal dictatorship; the boss dictates all of the work rules, pay and benefits. With Tesla’s stock options for its employees, Elon Musk can try to convince himself that he is a benevolent dictator. But let’s all be as clear as Musk himself is about his power over his workers. Musk fights the UAW in ways both sophisticated and clumsy because he wants to retain his dictatorial powers over his company and its workers.

[This post first appeared on the Unionist.com blog.]

Half of the labor movement could go “right-to-work” depending on the outcome of a pending Supreme Court decision. In Janus v. AFSCME, the justices are weighing whether union shop contract clauses that compel represented workers to join or pay a representation fee should be illegal in the public sector. With 7.2 million union members’ participation at stake, the case represents the latest in the unrelenting corporate assault on union power and financial resources.

Part of what the right wing is exploiting in this case is that for public sector workers, their employer is, in some sense, “the government.” That makes their union contracts more vulnerable to challenges from outsiders. Indeed, public sector workers won the right to negotiate for the same union shop clause that private sector unions have enjoyed for over a century in a 1978 Supreme Court case called Abood v. Detroit.

That long-settled precedent has been under sustained attack in recent years, with Supreme Court Justice Samuel Alito leading the charge. He inserted the argument—that every interaction that a union has with the government
is inherently political—into the Court’s 2014 decision in Harris v. Quinn. That decision maligned unions representing state-funded, but home-based, child and elder care work- ers and took away their right to bargain for the union shop.

In Harris, Alito strongly signaled that he and the rest of the conservative Court majority would support a court challenge to mandatory union fees as “compelled” political activity that violates the First Amendment. Lo and behold, Friedrichs v. California Teachers Association rock- eted through the courts the following year. It deadlocked in a 4-4 tie only because Justice Antonin Scalia died in 2015.

Two short years, and one stolen Supreme Court seat later, Janus is in front of the Court with the same stale arguments backed by the same deep pockets.

The anti-union argument is ironic because judges have spent most of U.S. history denying workers any kind of free speech right to form a union. Before Congress passed the National Labor Relations Act (NLRA) in 1935, courts were more likely to treat unions as criminal con- spiracies that interfered with employers’ property and contract rights. But even the NLRA, which provides legal protections for union organizing and collective bargaining, does not recognize a First Amendment right to engage in union activity. Instead, it bases those rights on Congress, and its power to regulate interstate commerce—not in the civil and constitutional rights of workers.
As a result, corporations enjoy more free speech protections to beat up on work- ers than workers and their unions have to organize. An employer can force workers to attend mandatory anti-union presentations or be fired, and unions have no comple- mentary right to respond. Workers can be fired for making “disloyal” statements about their company in the course of a protest. And the scope of issues that unions can meaningfully demand to bargain over has been significantly narrowed.

A ruling against AFSCME in Janus could provide unions with a solid First Amendment basis to challenge these and other inequities in labor law. But con- servative judges could also shamelessly wave away any argument about why free speech shouldn’t make collective bargain- ing fairer for workers, while beefing up corporate power. Already, some are concerned that anti-union lawyers will next argue that col- lective bargaining regulated by the NLRA is another “inherently political” interaction between unions and the government, making any union shop—even in the private sector—unconstitutional. That this argument might even see the light of day shows how far the right wing has pushed the American political conversation.

U.S. unions are bracing for impact. Unions with substantial public sector memberships have beefed up their mem- ber-to-member organizing programs. Their immediate goal is convincing current fee-payers to join and pay dues.
This is not a drill or a false alarm, and stewards play a key role in keeping workplaces, bargaining units and unions together as all working people—union and not—come under assault. Here are three things to do:

1. Talk about Janus and its effect on our communities, unions, and workplaces. Unionist.com has resources from across the labor movement and around the media.

2. Expect a well-funded direct mail blitz from union busters encouraging mem- bers to quit their union to “give themselvesa raise.” Member-to-member organizing is critical for counteracting right-wing propaganda portraying unions as “ineffective” third parties Here, shop stewards must be the first line of defense.

3. Express solidarity with all workers. Show up at another union’s picket line or rally, sure. Is there a demonstration against workplace raids by ICE in your community? Those are workers, too. Be there for them, in your union colors.

[This article originally Volume 29, Issue 2 of Steward Update.]