Dive Brief:

• Tesla must rescind a portion of a 2016 confidentiality agreement; rescind rules prohibiting certain protected concerted activity and addressing use of an HR software platform; and rehire one former employee, among other things, after a three-member panel of the National Labor Relations Board affirmed in part March 25 an agency judge's decision the company violated federal labor laws.
• Additionally, Tesla CEO Elon Musk must delete a 2018 tweet in which he suggested employees who voted to unionize would lose their company stock options, NLRB said. The Board said the automaker violated Section 8(a)(1) of the National Labor Relations Act when it "coercively interrogat[ed]" three employees who participated in protected activity and when it created rules restricting employee use of the HR platform, Workday, in response to protected activity.
• The Board found "contrary to the judge" that Tesla violated Section 8(a)(1) when it maintained a provision in a confidentiality agreement prohibiting employees from communicating with the media. NLRB also reversed the judge and dismissed some allegations against Tesla. The company did immediately respond to an HR Dive request for comment.

Dive Insight:

In issuing its decision, NLRB notably diverged from the administrative law judge's 2019 ruling on allegations including those regarding a Tesla confidentiality agreement provision informing employees that "regardless of whether information has already been made public, it is never OK to communicate with the media or someone closely related to the media about Tesla, unless you have been specifically authorized in writing to do so."

The Board noted Tesla's argument that employees "would understand" that the provision did not impact their protected activity, as defined by Section 7 of the NRLA, because the first sentence of the provision's following paragraph included the phrase "[u]nless otherwise allowed by law."

However, NLRB said "such vague, generalized language would require employees to meticulously determine the state of the law for themselves, and employees therefore cannot be expected to interpret that language to exclude Section 7 activity from the coverage of the media-contact provision."

NLRB's decision on Musk's 2018 tweet mirrored other recent decisions on tweets by company executives. Last year, an agency judge determined that online publication The Federalist co-founder and publisher Ben Domenech violated the NLRA in a tweet telling employees who attempted to unionize "I'll send you back to the salt mine."

Although NLRB affirmed the judge's finding that Musk's tweet violated the NLRA, the agency amended the judge's remedy and removed a requirement that Musk, or an NLRB agent in Musk's presence, perform a public reading of a compliance notice.