TESLA, INC.

National Labor Relations Board - Administrative Judge Opinions

Sep 27, 2019

32-CA-197020 (N.L.R.B. Sep. 27, 2019)

JD(SF)–33–19
Fremont, CA and Sparks, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES SAN FRANCISCO
TESLA, INC.
and Cases 32–CA–197020
32–CA–197058
MICHAEL SANCHEZ, an Individual 32–CA–197091
32-CA–197197
and 32–CA-200530
32–CA–208614
JONATHAN GALESCU, an Individual 32–CA–210879
and 32–CA–220777
RICHARD ORTIZ, an Individual
and
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, AFL–CIO
Edris W.I. Rodriguez Ritchie, Esq., and
Noah J. Garber, Esq., for the General Counsel.
Mark S. Ross, Esq. and Keahn N. Morris, Esq.,
for the Respondent.
Margo A. Feinberg, Esq., Daniel E. Curry, Esq., and
Julie S. Alarcon, Esq., for the Charging Party.
DECISION
INTRODUCTION
AMITA BAMAN TRACY, Administrative Law Judge. In the fall of 2016, the
International Union, United Automobile, Aerospace and Agricultural Workers of America,
AFL–CIO (Union or UAW) began an organizing campaign at Tesla, Inc. (Respondent or Tesla),
at its Fremont, California manufacturing plant. Several employees joined the voluntary
organizing committee, including the three Charging Parties, and after months of preparation, the
“Fair Future at Tesla” campaign became well known at Tesla in early 2017.
JD(SF)–33–19
2
This union organizing campaign quickly caught the attention of officials at Tesla as Jose
Moran, another member of the voluntary organizing committee, published a blog post about
working conditions at Tesla, which was then shared to all employees via a handbill. Employees
began leafletting this handbill in the parking lot, requesting safety records from Tesla, and
wearing union shirts and stickers in the workplace. As a result of these activities, employees 5
were questioned by Tesla officials.
Based upon another leaflet as well as an employee petition regarding safety conditions in
the workplace, Chief Executive Officer Elon Musk and Chief People Officer Gabriel Toledano
immediately met with Jose Moran because he presented the employee petition to Tesla. During 10
this meeting, Musk and Toledano promised to correct problems before the Union could come to
Tesla and made other coercive statements including telling Jose Moran and another employee
that the UAW would not give them a voice. Soon thereafter, Tesla began enforcing its team
wear rule in general assembly so that UAW shirts were prohibited.
15
Then, in October 2017, Tesla terminated Charging Party Richard Ortiz and disciplined
Jose Moran after Richard Ortiz posted a comment and employee pictures on a private Facebook
page in response to two Tesla employees opposing a UAW sponsored bill before the California
State Assembly. Finally, Respondent violated the Act with Musk’s May 20, 2018 Twitter post
where he suggested to his followers that the employees would no longer have stock options if the 20
Union was elected. I find merit to all but a few allegations as set forth in the General Counsel’s
consolidated complaint.
STATEMENT OF THE CASE
25
This case was tried in Oakland, California, over the course of 13 days from June to
October 2018. The Union, Michael Sanchez (Sanchez), Jonathan Galescu (Galescu), and Richard
Ortiz (Ortiz) (collectively, Charging Parties) filed charges and amended charges, as captioned
above, from April 2017 through June 2018.1 The General Counsel issued several complaints,
dated August 31 and September 1, 2017, and March 30, June 4, and August 23, 2018, which 30
were eventually consolidated in the current complaint.2 Tesla filed timely answers to the
complaints and amended complaints.

1 On the dates specified, the Charging Parties filed the following charges and amended charges which
resulted in this consolidated complaint: 32–CA–197020 on April 17, 2017, amended July 28, 2017; 32–
CA–197058 on April 17, 2017, amended July 28, 2017; 32–CA–197091 on April 18, 2017, amended July
28, 2017; 32–CA–197197 on April 19, 2017, amended July 28, 2017; 32–CA–200530 on June 12, 2017,
amended July 28, 2017; 32–CA–208614 on October 25, 2017, amended March 13, 2018; 32–CA–210879
on December 1, 2017, amended on December 6, 2017; and 32–CA–220777 on May 23, 2018.
2 The General Counsel withdrew complaint paragraphs (par.) 7(m) and 7(x) during the hearing as
well as removed Andrew McIndoe (McIndoe) from complaint par. 5 (Tr. 1095–1097). In addition, the
General Counsel sought to amend the complaint on the last day of the hearing, which I denied (Tr. 2495-
2496).
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3
On the entire record,3 including my observation of the demeanor of witnesses,4 and after
considering the briefs filed by the General Counsel, Charging Parties, and Respondent,5 I make
the following
FINDINGS OF FACT AND LEGAL ANALYSIS5
I. JURISDICTION
Respondent, a Delaware technology and design corporation with its headquarters in Palo
Alto, California, an automotive manufacturing facility in Fremont, California (Fremont facility), 10
and an automotive battery facility in Sparks, Nevada (Sparks facility), is engaged in the design,
manufacture, and sale of electric vehicles and energy storage systems. During the 12-month
period ending December 31, 2017, Respondent, in conducting its operations at its Fremont
facility purchased and received goods valued in excess of $50,000 directly from sources located
outside the State of California. During the 12-month period ending December 31, 2017,15
Respondent, in conducting its operations at its Sparks facility, purchased and received goods
valued in excess of $50,000 directly from sources located outside the State of Nevada. At all
material times, based on the record, Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act (the Act).
Respondent admits, and I find, that the Union is a labor organization within the meaning of 20
Section 2(5) of the Act.
Based on the foregoing, I find this dispute affects commerce and that the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act.
25
II. UNFAIR LABOR PRACTICES
After an introduction and uncontested background facts, I set forth my factual findings
and legal analysis including credibility determinations for each of the unfair labor practice
allegations enumerated in the General Counsel’s consolidated amended complaint. 30
Credibility of the witnesses in this matter is significant as several disputes center upon
which version of events and/or explanation of events I accept. Thus, I will explain my specific
credibility determinations where relevant for key events. Credibility determinations may rely on
various factors, including “the context of the witness’ testimony, the witness’ demeanor, the 35
weight of the respective evidence, established or admitted facts, inherent probabilities and

3 The transcripts and exhibits in this case generally are accurate other than numerous misspellings and
misidentifications of the speakers. In addition, GC Exhs. 10 and 11 should have been redacted such that
Ortiz’ address and email address should have been removed. I order the General Counsel to contact the
court reporting service to redact these documents as I directed during the hearing (Tr. 438–439).
4 Although I have included several citations to the evidentiary record in this decision to highlight
testimony or exhibits, I emphasize that my findings and conclusions are not based solely on those
citations, but rather are based on my review of the entire record for this case.
5 Other abbreviations used in this decision are as follows: “GC Exh.” for the General Counsel’s
exhibit; “CP Exh.” for Charging Parties’ exhibit; “R Exh.” for Respondent’s exhibit; “Jt. Exh.” for Joint
Exhibit; “GC Br.” for the General Counsel’s Brief; “CP Br.” for Charging Party’s Brief; and “R Br.” for
Respondent’s Brief.
JD(SF)–33–19
4
reasonable inferences that may be drawn from the record as a whole.” Hills & Dales General
Hospital, 360 NLRB 611, 617 (2014), citing Double D Construction Group, 339 NLRB 303, 305
(2003); Daikichi Sushi, 335 NLRB 622, 623 (2001). Moreover, a credibility assessment also
includes an examination of “the expression of his countenance, how he sits or stands, whether he
is inordinately nervous, his coloration during examination, the modulation or pace of his speech, 5
and other non-verbal communication.” Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996) (citing Penasquitos Village v. NLRB, 565 F.2d 1074, 1078–1079 (9th Cir. 1977)), cited
with approval by the Board in Daikichi Sushi, supra. Additionally, it is well established that the
trier of fact may believe some, but not all, of a witness’ testimony. NLRB v. Universal Camera
Corp., 179 F.2d 749 (2d Cir. 1950).10
III. INTRODUCTION
Tesla is a public manufacturing and technology company and manufactures electric
vehicles, charging stations, and superchargers as well the main subcomponents for vehicles at its 15
Fremont facility (Tr. 870, 1340). Tesla began manufacturing various models of all-electric
vehicles in 2012. The entire vehicle is assembled and completed at the Fremont facility while
the batteries are assembled at the Sparks facility (Tr. 1341). Tesla employs approximately
40,000 employees nationwide while 12,000 employees work at the Fremont facility and an
unspecified number of employees work at the Sparks facility (Tr. 877, 960). 20
Respondent’s Management Structure
Elon Musk (Musk) is the chief executive officer of Tesla (Tr. 877). Peter Hochholdinger
(Hochholdinger), who was senior vice president for production, reported directly to Musk (Tr. 25
1340). Also reporting directly to Musk is the position of chief people officer (Tr. 877).
Gabrielle (Gabby) Toledano (Toledano) became Tesla’s chief people officer on May 22, 2017
until she resigned, effective mid-October 2018 (Tr. 870). Prior to Toledano, Mark Lipscomb
(Lipscomb) held the position of vice president, human resources, but instead of reporting to
Musk, Lipscomb reported to Arnnon Geshuri (Geshuri), who was also vice president of human 30
resources.6
As the chief people officer, Toledano oversaw a vast array of day-to-day functions of
Tesla. Toledano oversaw the environmental health and safety team (EHS), the security
department which includes the contract and noncontract security guards at the Fremont facility35
which was led by senior security manager Greg Slettvet (Slettvet),7 the human resources (HR)
business solutions department (human resources information systems (HRIS) or HR people
operations), and the employee relations and investigations team which was led by Carmen
Copher (Copher) who is director and counsel for employee relations. In addition, six HR
business partners communicated with employees directly to address any complaints or concerns 40

6 Respondent admits that Musk, Lipscomb, and Toledano are supervisors within the meaning of
Section (Sec.) 2(11) of the Act and agents of Respondent within the meaning of Sec. 2(13) of the Act.
Lipscomb and Toledano no longer work for Tesla.
7 Slettvet is a Sec. 2(11) supervisor within the meaning of the Act as admitted by Respondent’s
counsel during the hearing (Tr. 1476–1477).
JD(SF)–33–19
5
(Tr. 884). Each department is led by a head of department or vice president who reported
directly to Toledano including Josh Hedges (Hedges) who was senior HR director for production
and supply chain; Hedges reported to Lipscomb prior to Toledano (Tr. 1113).8 In total, when
Toledano served as the chief people officer, 1400 employees were within her chain of command
(Tr. 880). 5
Respondent’s Human Resources Process
When employees are hired by Respondent, they sign several documents during the on-
boarding process.9 Among the documents received are the employee handbook as well as a 10
proprietary information and inventions agreement (Tr. 442; R Exh. 4). To maintain both
documents as well as personnel records, Respondent uses a third-party owned software program
named “Workday” (Tr. 389, 833, 1132). Employees download the Workday application onto
their smart phone where they can update their contact information, fill out self-reviews for
performance reviews, give and receive feedback, and sign documents sent by Respondent (Tr. 15
441–442, 6671). Employees may also send messages to other employees via Workday (Tr. 442).
The employee handbook is also maintained in Workday (Tr. 1123; R Exh. 5).
Once hired, Respondent’s employees gain access to the Fremont facility via an employee
badge. The employee badge, which has their name and Workday profile photo, identifies 20
individuals as employees, gives employees unescorted access to the Fremont facility, the ability
to sign in and out of the timeclock, make purchases at the safety vending machines, and use the
external transportation system (Tr. 1432–1433, 1435–1437).
The Fremont Facility25
Respondent’s Fremont facility is an approximately 5 million square foot building with
external parking lots and other unidentified structures (Tr. 1342). This parking lot may be used
by both employees and nonemployees (Tr. 384).10 There are four unguarded entrances to the
parking lot while there is one guard station located near the north administrative (admin)30
building (GC Exh. 2; Jt. Exh. 1; Tr. 382–383). No identification is needed to enter the parking
lot without a guard station (Tr. 382). Once an employee or non–employee parks in the parking
lot, that person may attempt to enter the Fremont facility from one of four entrances or doors,
labeled as door 1, door 2, door 3, and door 4.11 Each door has an entrance reached via stairs

8 Respondent admits that Hedges is a supervisor within the meaning of Sec. 2(11) of the Act and an
agent of Respondent within the meaning of Sec. 2(13) of the Act. Hedges resigned, effective October 5,
2018 (Tr. 1112).
9 Hedges testified extensively about the on-boarding process at Tesla, but I do not rely upon his
testimony as Hedges spoke vaguely and did not have any day-to-day knowledge of the on-boarding
process. Hedges’ area of coverage did not include the hiring process at Tesla. In addition, Hedges could
not provide basic details such as whether a document had been updated at any time and the time periods
for when a version of a document was in effect (Tr. 1251–1253).
10 Jeremie Hansen (Hansen), project manager and security systems specialist for Respondent, testified
that the exterior of the Fremont facility is considered private property (Tr. 1434). I do not credit Hansen’s
testimony on this point as it is based on his opinion and is a legal conclusion.
11 Confusingly, door 3 is also known as the Iron Man door or door 4 since the north admin building
door was also considered door 3 (Tr. 393).
JD(SF)–33–19
6
located on the left front-facing side while the right front-facing side has a ramp. At each of the
four entrances there are doors leading to the interior of the Fremont facility. Each door has a
sensor where employees scan their employee badges to unlock the door and enter the Fremont
facility (Tr. 85, 385, 1436–1437). The door sensor shines red or green after the employee badge
is held up to the sensor. If permitted inside the Fremont facility, the door will shine green, make 5
a beeping noise, and unlock (Tr. 387). Inside the doors, a security guard is stationed at a podium
with a laptop which shows the picture of the employee who had swiped his or her employee
badge (Tr. 80, 387–388, 1437). Typically, employees first encounter Respondent’s security
guards when they enter the Fremont facility at the podium (Tr. 384). The security guard who is
stationed at an entry door is tasked with ensuring that only those with an active and valid 10
employee badge gains access to the interior of the Fremont facility (Tr. 1439). If there is a
question as to any employee’s work status at the Fremont facility, security guards may
communicate with the security control room to determine the employee’s status. Meanwhile,
visitors to the Fremont facility must check-in at a designated location, receive temporary badges,
and are escorted within the Fremont facility (Tr. 1433–1434). Tesla’s north admin building also 15
contains an entrance which is referred to as the back door (Tr. 149).
Respondent’s security guards wear black colored jackets and hats which include the
word, “Security” underneath the Tesla logo (Tr. 80, 387). 12 The security guards do not wear
nametags (Tr. 387). Security guards at Tesla are employed directly by Tesla or by a contract 20
security company. These security guards wear the same uniform such that the employer of the
security guard would be unidentifiable to an employee (Tr. 1531–1532).13 In February 2017, in
addition to the being stationed at the four doors, security guards patrolled the exterior of the
Fremont facility in Tesla “Security” vehicles (Tr. 1483, 1535). Also in February 2017,
Respondent’s security control room, which monitors communications and emergency systems in 25
the Fremont facility, was staffed by both contractors and Tesla employees (Tr. 1484–1485). The
security personnel in the control room would document reports on a computer assisted dispatch
report (Tr. 1486–1487).
The interior of the Fremont facility is divided into various sections. The powertrain 30
department manufactures the components of the vehicle and is located on the second floor of the
main building. The production control team manages the warehouse, and material handlers bring
parts to the assembly areas (Tr. 1342–1343). The stamping press center creates the body panels,
doors, liftgates, and hoods for the vehicles with aluminum, and cuts items with laser machines.
Once items are stamped, the parts are loaded onto racks which move into the warehouse and 35
material handlers take the parts to the next department (Tr. 1343–1344). In body in white (BIW
or body assembly), the stamped parts and other purchased components will be welded together
by welders to create the skeleton of the vehicle (Tr. 245–246). Once the frame of the vehicle is
assembled, the vehicle is transported to the paint department on a dolly. The frame of the
vehicle is then sent through a chemical bath to protect it from corrosion and erosion, and then 40

12 The title of security guard is used generically in this decision as the position of security guard may
be officially known as protection associate or any other formal name.
13 Securitas Security Services USA Inc. (Securitas) provided contract security services to Respondent
in February 2017 (Tr. 1458). Thus, the record is unclear as to whether the unnamed security guards in the
complaint allegations are employees of Respondent or Securitas.
JD(SF)–33–19
7
moved through an oven for curing (Tr. 246–247, 1344–1345). Thereafter, the vehicle is painted
and sent through another oven to cure the paint (Tr. 247-248). The vehicle will then go through
inspections and touch-ups before being moved to general assembly (GA) via overhead carrier
system (Tr. 1347).14
5
GA is approximately 500 yards in length (Tr. 191). Approximately 1,000 to 3,000
employees, also known as production associates, work in GA (Tr. 191, 1116). These employees
are overseen by production leads and supervised by production supervisors, production associate
managers, and production managers (Tr. 1399–1400). In GA, approximately 14 supervisors and
71 leads work per shift; there are two shifts per day (Tr. 1391–1392). After being hired, GA 10
production associates receive 1 week of on-boarding training including 2 days of hands-on
training involving equipment handling and how to treat unfinished vehicles where the paint has
not been cured (Tr. 1368–1369). Since at least 2017 GA production associates must also wear
team wear. When hired, product associates are provided two pairs of black colored pants, three
short sleeve shirts, two long sleeve shirts, and a sweater; these clothing items have an imprint of 15
the Tesla logo (GC Exh. 41; Tr. 198–199, 1370, 2411–2412, 2524–2525). Production leads and
supervisors wear red colored Tesla shirts while line inspectors wear white colored Tesla shirts
(Tr. 331, 1372–1373, 1597). Production associates also must wear personal protective
equipment (PPE) which includes safety glasses and shoes, bump caps and gloves, and covers for
their belts, rings, and watches; these items are also provided by Respondent (Tr. 199, 1373, 20
1599). Other employees may also be working in GA for specific reasons such as BIW
employees as well as engineers, vendors, contractors, and material handlers (Tr. 256, 1378–
1379).
When a vehicle moves to GA, the paint on the vehicle is cured sufficiently for light 25
touching and general handling but not cured as completely as when the vehicle is finished (Tr.
1347). Fender covers and door protectors are placed on the vehicle for protection (Tr. 1347).
These vehicles move slowly on an assembly line where the interior and exterior of the vehicle is
completed (Tr. 191, 1348–1365, 1920). Towards the end of the vehicle assembly in GA, the
final interior components are installed such as the seats and interior panels, and the doors are re-30
assembled on the vehicle (Tr. 1364–1365).
After GA, the vehicle is moved to end of line where production associates go through the
brake and roll system, test diagnostics, test the charging systems, and install the final steering
wheel air bag (Tr. 1345–1346, 1367). The vehicle then goes through the inspection department 35
where the vehicle is inspected for fit and finish and mutilations, dings, and dents (Tr. 1368).15
Mutilations are scratches, buffs, chips, dents, dings, or scratches anywhere on or in a vehicle
including the seats (Tr. 1373, 1597, 1653, 2399). After final inspection, the manufacturing
process for the vehicle is complete.
40

14 In mid-2017, approximately 550 production associates and leads worked per two shifts.
15 Mutilations may be found and fixed at any stage of the vehicle manufacturing process (Tr. 1373,
1597–1599).
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The Sparks Facility
The Sparks facility manufactures the electric battery for the vehicles manufactured in the
Fremont facility. Respondent’s training coordinators worked out of the Sparks facility where
they disseminate manufacturing instruction changes on individual lines, update training matrixes, 5
and provide general guideline classes, which include manufacturing practices, quality in station,
and safety. As manufacturing instructions change, the training coordinators are responsible for
updating these changes and posting them at the work stations. Training coordinators have a table
adjacent to production lines, but they go out to production lines and talk to the associates
working on productions lines when instructions change. When instructions change, which comes 10
from a different division of Respondent, the training coordinator obtains updates and takes the
updated instructions to the production lines. Training coordinators then place the new
instructions in folders at each work station and remove the old instructions.
At Respondent's Sparks facility, from April to June 2017 Dave Teston (Teston), who was 15
the associate manager of manufacturing, was responsible for the training team, which included
the day-to-day duties of the training coordinators.16 Teston was also responsible for increasing
the size of the training coordinator team during that time.
The Union Organizing Campaign20
In the summer of 2016, Tesla employee Jose Moran (Moran) reached out to the UAW
since he had been a member when the Union represented employees at New United Motors
Manufacturing, Inc. (NUMMI), which was located at the Fremont facility (Tr. 51, 668, 673,
750).17 Moran sought to unionize the workforce at Tesla. Susan Reed (Reed), the Union’s 25
international representative, was the lead organizer from June 2016 until April 2018 in the
Union’s campaign to represent Respondent’s employees (Tr. 44–45).18 Reed worked to build a
network of employees and met frequently with the employees interested in organizing
Respondent’s workplace (Tr. 45–46). The Union created a voluntary organizing committee
(VOC) which consisted of employees that acted as lead organizers inside the Fremont facility; 30
these employees shared information regarding the Union inside the facility as well as outside the
facility (Tr. 46–47). The VOC held meetings where employees discussed health and safety
concerns at Respondent along with questions regarding compensation, job promotions, and other
working conditions (Tr. 674, 677). Other members of the VOC included Charging Parties
Sanchez, Ortiz, and Galescu (Tr. 86–87, 430–431, 680). The VOC continued to meet through 35
the fall of 2016 and into 2017.
Moran and Ortiz were among the most active supporters of the Union, and they engaged
in leafletting, passing out union paraphernalia, and wearing union shirts and jackets to work in
2017 (Tr. 48, 51, 536). As discussed hereinafter, Moran also authored a blog post concerning 40
working conditions at Tesla and circulated a safety petition signed by many employees and

16 The parties stipulated to Teston’s testimony. At all relevant times until at least February 5, 2018,
Teston was a supervisor within the meaning of Sec. 2(11) of the Act.
17 Respondent employed Moran in 2012 as a production associate, and in August 2017 Moran was
promoted to lead quality inspector.
18 Reed testified in an honest and straightforward manner while her demeanor remained calm and
measured relaying her participation on the union campaign. I accept Reed’s testimony in its entirety.
JD(SF)–33–19
9
presented to Respondent. Ortiz, who worked as an associate in BIW with Respondent from 2016
to October 18, 2017, also requested California Division of Occupational Safety and Health
(Cal/OSHA) safety records. Both Moran and Ortiz spoke to California State Assembly
legislators to advocate on behalf of employees in favor of unionization.
5
In August 2016, the employees interested in unionizing voted on a campaign slogan and a
logo (Tr. 678; GC Exh. 35). The employees chose, “Driving a Fair Future at Tesla.” A public
website was created at www.fairfuture@tesla.org (Tr. 679; GC Exh. 39). Also, the Union
created a public Facebook page called, “A Fair Future at Tesla” (Tr. 47, 682; GC Exh. 40). The
Union created this Facebook page to provide a social media forum for employees to comment 10
and share information with others. Employees, including Moran, often posted on the Facebook
public page (Tr. 51). In August 2016, Moran created a private Facebook group called, “Tesla
Employees for UAW Representation” (Tr. 433–434, 675).19 To be a member of this Facebook
group, Moran (and later Ortiz) controlled the approval process of “friend requests” and
membership where only Tesla Fremont facility hourly production employees could be members15
(Tr. 434, 675–676). In January 2017, the VOC members and union organizers decided to
distribute leaflets at the Fremont facility and Moran decided to write a blog post regarding
working conditions at Tesla (Tr. 432–433). As discussed herein, employees also distributed and
wore Union shirts and stickers at work during duty time, requested safety statistics from Tesla,
and advocated on behalf of unionization with the California State Assembly among other Section 20
7 acts.
On February 9, 2017,20 the union organizing campaign became widely known when
Moran wrote an article, titled, “Time for Tesla to Listen” about the working conditions at
Respondent (GC Exh. 32; Tr. 688). This article was posted online at www.medium.com (Tr. 25
687). The blog post identified Moran as a Tesla employee and included his photo. In this blog
post, Moran discussed the injuries Tesla employees endure due to long hours, nonergonomic
machinery, shortage of employees, and a push to work faster. Moran also discussed Tesla
employees’ low wage rate compared to other employees in the auto industry. Moran wrote that
the employees should unionize in reaction to Respondent requiring employees to sign 30
confidentiality agreements. Moran also noted that five members of the California State
Assembly wrote a letter to Tesla questioning the confidentiality policy issued to employees in the
fall of 2016 (GC Exh. 8). 21 The following day, employees handed out double-sided leaflets in
the Tesla parking lot which included Moran’s blog post and the letter from the California State
Assembly members to Tesla regarding its Confidentiality Agreement. 35

19 Earlier in 2016 Moran created a Facebook page called, “Jose organizer” to have a presence on
social media for meeting organizing purposes and to connect with coworkers (Tr. 675).
20 All dates are in 2017 unless otherwise specified.
21 In response, that same day, Musk, in an article published by Gizmodo, responded to Moran’s blog
post (GC Exh. 59). The article quotes Musk as stating that compared to those unionized in UAW, “total
compensation is higher for a given level of seniority when factoring in stock grants.” Musk described
Tesla as “union neutral” and explained that the Confidentiality Agreement concerned the leak of trade
secrets. Musk continued, as this article stated, that his understanding was that Moran “was paid by the
UAW to join Tesla and agitate for a union. He doesn’t really work for us, he works for the UAW,” and
“The UAW killed NUMMI and abandoned the workers at our Fremont plant in 2010. They have no leg
to stand on.” These statements allegedly made by Musk for this article are hearsay and are not relied
upon in this decision.
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10
On February 24, 2 weeks after the employees first engaged in leafletting inside and
outside the Fremont facility, Musk wrote an email to all employees about the mission of Tesla,
writing:
5
That is why I was so distraught when I read the recent blog post promoting UAW,
which does not share our mission and whose true allegiances is to the giant car
companies, where the money they take from employees in dues is vastly more
than they could ever make from Tesla.
10
The tactics they have resorted to are disingenuous or outright false. I will address
their underhanded attacks below.
(R Exh. 2.) Moreover, Musk disputed the injury claims made by Moran in his blog post. Musk
also addressed “hours worked” in the “UAW blog.” Musk closed his email by stating that once 15
Tesla became “closer to being a profitable company, we will be able to afford more and more fun
things” such as “a really amazing party,” “free frozen yogurt stands” and a roller coaster at the
Fremont facility going in and out of the factory and connecting the parking lots (R. Exh. 2).
IV. COMPLAINT PARAGRAPHS 7(A) AND (B): RESPONDENT’S CONFIDENTIALITY 20
AGREEMENT DOES NOT VIOLATE SECTION 8(A)(1) OF THE ACT, AND RESPONDENT DID
NOT VIOLATE SECTION 8(A)(1) WHEN REFUSING TO PERMIT AN EMPLOYEE TO
PHOTOGRAPH THE CONFIDENTIALITY AGREEMENT
The General Counsel alleges at paragraphs 7(a) and (b) that since at least late 25
October 2016, Respondent has maintained certain unlawful rules in its Confidentiality
Agreement at the Fremont facility. Moreover, the General Counsel alleges that in late October
2016 or early November 2016, Senior HR Partner David Zweig (Zweig) at the Fremont facility,
during a one-on-one meeting with employees, prohibited employees from taking a picture of the
Confidentiality Agreement. The General Counsel alleges that both the maintenance of certain 30
unlawful rules and the prohibition on taking pictures of the Confidentiality Agreement violate
Section 8(a)(1) of the Act. Specifically, the General Counsel argues that certain portions of the
Confidentiality Agreement are overbroad, requires preauthorization before speaking to the
media, prohibits employees from writing about their work, and threatens disciplinary action (GC
Br. at 47–51). In addition, the General Counsel argues that because Galescu sought to take a 35
photo of the Confidentiality rule, Zweig’s prohibition on taking the photo was unlawful (GC Br.
at 52–53). Respondent argues that the Confidentiality Agreement is a generic rule which does
not interfere with Section 7 rights, and even if the rule may be read to infringe on Section 7
rights, especially when read out of context, its legitimate business justification overrides such
rights. Moreover, Respondent argues that Zweig’s refusal to permit Galescu to take a photo of 40
the Confidentiality Agreement was lawful and does not infringe on any Section 7 rights (R Br. at
25–42).
In October and November 2016 Respondent asked all employees nationwide as a term
and condition of employment to sign a confidentiality acknowledgment (Confidentiality 45
Agreement) (Tr. 372, 1167; GC Exh. 15, 31). The Confidentiality Agreement states,
JD(SF)–33–19
11
In response to recent leaks of confidential Tesla information, we are reminding
everyone who works at Tesla, whether full-time, temporary or via contract, of
their confidentiality obligations and asking them to reaffirm their commitment to
honor them.
5
These obligations are straightforward. Provided that it’s not already public
information, everything that you work on, learn about or observe in you[r]
work about Tesla is confidential information under the agreement that you
signed when you first started. This includes information about products and
features, pricing, customers, suppliers, employees, financial information, and 10
anything similar. Additionally, 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.
15
Unless otherwise allowed by law or you have received written approval, you
must not, for example, discuss confidential information with anyone outside
of Tesla, take or post photos or make video or audio recordings inside Tesla
facilities, forward work emails outside of Tesla or to a personal email
account, or write about our work in any social media, blog, or book. If you 20
are unsure, check with your manager, HR, or Legal. Of course, these
obligations are not intended to limit proper communications with government
agencies.
The consequences of careless violation of the confidentiality agreement, could 25
include, depending on severity, loss of employment. Anyone engaging in
intentional violations of the confidentiality agreement will be held liable for
all the harm and damage that is caused to the company, with possible
criminal prosecution. These obligations remain in place even if no longer
working at Tesla.30
By acknowledging, I affirm my agreement to comply with my confidentiality
obligations to Tesla. I also represent that at no time over the past 12 months have
I disclosed any Tesla confidential information outside of Tesla unless properly
authorized to do so. 35
(GC Exh. 31; R Exh. 11 and 14, emphasis in bold added to highlight the portions the General
Counsel alleges are overbroad in the complaint).
The Confidentiality Agreement, created in September and October 2016, was drafted by 40
Vice President of Legal Jonathan Chang (Chang) among others. Chang credibly testified that the
Confidentiality Agreement was drafted due to several leaks of internal, proprietary and/or
confidential information including photos and/or drawings, documents and emails (Tr. 2004–
2007, 2014, 2029-2030; R Exh. 11, 37, 41). One such leak included an August 29, 2016 email
from Musk to all employees which discussed Respondent’s financial position as well as 45
projections for the future which was shared with the media (Tr. 2009–2012; R Exh. 38).
Respondent decided to have all employees resign the Confidentiality Agreement to remind the
JD(SF)–33–19
12
employees of the seriousness of leaks. Prior to issuing the Confidentiality Agreement,
Respondent sent out emails to employees reminding them of their obligation to maintain
confidentiality; when employees were hired, they also signed several documents including the
need to maintain confidentiality of Respondent’s proprietary information (Tr. 2019, 2023; R
Exh. 4, 39, 40). 5
When creating the Confidentiality Agreement, Respondent did not conduct economic
studies to determine any actual financial harm (Tr. 2045). However, Chang testified that leaks of
internal information can affect Respondent’s business where potential customers may not seek to
purchase a vehicle, competitors could use the information, employee talent could be 10
compromised and there could be Securities and Exchange Commission (SEC) concerns
(Tr. 2015–2017).
On October 11, 2016, Lipscomb sent out a slightly different version of the
Confidentiality Agreement which ends with, “By signing below, I affirm my agreement to 15
comply with my confidentiality obligations to Tesla [. . .]” (GC Exh. 15; R Exh. 12).22 This
version also requires employees to sign the document, with a witness’ signature, and ends with a
section which requires employees to list any disclosures as a “one-time complete forgiveness of
responsibility [. . .]” (GC Exh. 15). These signatures needed to be observed by HR or “trusted
managers” but that the signatures on the Confidentiality Agreement needed to be completed that 20
week (R Exh. 12). This October 11, 2016 version of the Confidentiality Agreement replaced the
prior version (Tr. 1169).
Prior to asking employees to sign the Confidentiality Agreement, Hedges, based on
information learned from Lipscomb, told his HR partner team that Respondent was having 25
information leaks from engineering in October 2016 and they needed to remind everyone of the
confidentiality agreement they signed when they became employees; the employees would be
asked to sign the Confidentiality Agreement in the presence of an HR representative (Tr. 1166,
1170: R Exh. 43).23 HR partners met with different groups of employees to have them sign the
Confidentiality Agreement.30
On the evening of November 2, 2016, Lipscomb sent an email to all employees asking
employees to sign the Confidentiality Agreement electronically in their Workday inbox within
the next 5 days (GC Exh. 31; R Exh. 13). Lipscomb explained that Respondent needed this
affirmation to reinforce the importance of confidentiality as any leaks “can have a negative 35
impact on our company” (GC Exh. 31). Lipscomb also noted that the Confidentiality Agreement
would be signed annually. Electronic signatures were requested to enable easier linking with the
employees’ personnel files in Workday (Tr. 2085). If employees wanted a copy of the

22 Lipscomb did not testify.
23 Annalisa Heisen (Heisen), an associate HR partner, testified that Hedges informed the HR partners
that the Confidentiality Agreement related to the recent information leak and asked them to oversee and
execute the process of having all employee sign the Confidentially Agreement (Tr. 2075–2076). Heisen
testified that she informed employees that due to the recent information leaks at the Fremont facility,
Respondent wanted to make sure all employees understood their obligation to keep information
confidential with examples such as forwarding internal emails that contain proprietary information to
external emails and taking and sharing photos and videos in the workplace (Tr. 2078–2080).
JD(SF)–33–19
13
Confidentiality Agreement, a copy would later be provided but this offer of a copy was not
specifically mentioned to employees (Tr. 2086).
On November 3, 2016, Lipscomb sent another email to the employees the following
afternoon reminding them to log into their Workday inboxes to sign the Confidentiality 5
Agreement. Two days later, in the morning, Lipscomb sent another reminder email to the
employees to sign the Confidentiality Agreement. A few minutes later, he sent another email
with a link to Workday if any employee was having trouble accessing the document (GC Exh.
31).
10
In November 2016, Galescu testified that he attended a small meeting with Zweig and
one other employee to sign the Confidentiality Agreement (Tr. 835–836, 838).24 During this
meeting, after Galescu signed the Confidentiality Agreement, he began to take a photo of it with
his phone. However, Zweig told him that he could not take a photo of the Confidentiality
Agreement, but that the document would be uploaded to his Workday profile (Tr. 837–838). A 15
week later, Supervisor Armando Rodriguez (Rodriguez) asked Galescu to electronically sign the
Confidentiality Agreement again (Tr. 839–840).
Thereafter in a January 10 letter, five members of the California State Assembly,
requested that Tesla revise its Confidentiality Agreement as they viewed the policy as “over-20
broad” and “has resulted in a chilling effect on workers’ ability to engage in protected activity”
(GC Exh. 8). Tesla’s general counsel, Todd Maron (Maron), responded to the letter on behalf of
Tesla explaining the reasons and genesis for having the employees sign the Confidentiality
Agreement (R Exh. 42).
25
Legal Analysis
An employer violates Section 8(a)(1) of the Act when it maintains a workplace rule or
policy which would reasonably tend to chill employees in the exercise of their Section 7 rights.
See Lafayette Park Hotel, 326 NLRB 824, 825 (1988), enfd. 203 F.3d 52 (D.C. Cir. 1999). In 30
Boeing Co., 365 NLRB No. 154 (2017), the Board established a new standard to determine
whether a facially neutral rule or policy violates Section 8(a)(1) of the Act, overruling the
“reasonably construe” standard of the analytical framework set forth in Lutheran Heritage
Village-Livonia, 343 NLRB 646, 646–647 (2004). In Boeing Co., the Board stated that when
evaluating a facially neutral rule or policy “the Board will evaluate two things: (i) the nature and 35
extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with
the rule.” Boeing Co., supra, slip op. at 3.25 The General Counsel concedes that the
Confidentiality Agreement is a facially neutral rule.
I agree with the General Counsel that when the alleged provisions are read in isolation40
the Confidentiality Agreement would inhibit Section 7 rights of employees. An employee may
read the rule to preclude the discussion of any information about employees which could include

24 Zweig did not testify. Respondent admits that Zweig is a supervisor within the meaning of Sec.
2(11) of the Act and as an agent of Respondent within the meaning of Sec. 2(13) of the Act.
25 As result of the balancing, the Board established three categories of employment rules, policies and
handbook provisions which are not part of the test but are a result of the application of the test.
JD(SF)–33–19
14
terms and conditions of employment and wages with any other employee or third party such as a
union. Moreover, an employee could read the rule to prohibit the discussion of confidential
information which could include working conditions, the taking or posting of photos, making
videos or audio recordings, forwarding work email or writing about their employment without
receiving permission. Finally, the employee would know that a violation of the Confidentiality 5
Agreement could result in discipline. Thus, employees could read this provision of the
Confidentiality Agreement and understand that they could not share employee information such
as wages, working conditions, and contact information with other employees and with unions
which directly impacts employees’ Section 7 rights. See Rio All-Suites Hotel & Casino, 362
NLRB 1690, 1691 (2015); Hyundai America Shipping Agency, Inc., 357 NLRB 860, 871 (2011), 10
reversed on other grounds 805 F.3d 309 (D.C. Cir. 2015).
However, the Confidentiality Agreement cannot be read in isolation and must be
considered in the full context of the events at the time. See Lafayette Park Hotel, supra at 825,
827. To this point, the Confidentiality Agreement begins with the reason why the employees are 15
asked to reaffirm their commitment to maintaining confidentiality of Tesla information. In the
Confidentiality Agreement, the emails from Lipscomb, and the conversations by the HR partners
with employees, Respondent explained that the reaffirmation of the Confidentiality Agreement
was due to leaks of proprietary information at the workplace. For example, on November 2,
2016, Lipscomb again explained to the employees that “[t]here is a ton of exciting things 20
happening at Tesla and the interest level in what we are doing has never been higher. It’s
absolutely critical that we maintain strict confidentiality on all internal matters as any leak can
have a negative impact on our company” (R Exh. 13). At Respondent, in the past, employees
received emails from the general counsel and HR director about leaks in the workplace with
context such as the launch of the Model 3 Tesla. Thus, considering the totality of the 25
circumstances, I find that reasonable employees would understand the Confidentiality
Agreement to be limited to proprietary information.
Even if the Confidentiality Agreement infringes on employees’ Section 7 rights,
Respondent presented legitimate business justifications to override these rights. An otherwise 30
overbroad rule “can nevertheless be lawful if [it] is justified by significant employer interests.”
Lafayette Park Hotel, supra at 825, fn. 5. Here, Respondent presented evidence that it suffered a
series of information leaks which are critical to its success. Even prior to these leaks in August
2016, Respondent sent reminders to employees to maintain confidentiality of proprietary
business information. Employees also acknowledged their obligation to maintain confidentiality 35
when they were hired. Respondent asked employees to reaffirm their commitment to not leaking
or disclosing confidential information. Respondent sought to ensure every employee understood
the reasons for why they needed to reiterate this rule, and later decided to make sure this
Confidentiality Agreement was in each employees’ Workday account. In addition, in the
automotive industry, Respondent has legitimate concerns to maintain security of its confidential 40
proprietary information by not permitting photos or recordings in the workplace. Cf. Flagstaff
Medical Center, 357 NLRB 659 (2011) (prohibition on the use of cameras to record images of
patients and/or hospital equipment, property or facilities is lawful); Boeing Co., supra, slip op. at
15 (prohibition on the use of cameras and photography in the military/civilian aircraft
manufacturing plant lawful). 45
JD(SF)–33–19
15
The General Counsel and the Union attempt to connect the employees’ unionizing efforts
with Respondent’s decision to reissue the Confidentiality Agreement thereby showing the “true”
reason for the rule. However, in reviewing the entire record, I can find no connection. Although
several employees worked on the unionization campaign in the fall of 2016, there is no evidence
that Respondent knew of its existence. Even when Galescu tried to take a photo of the 5
Confidentiality Agreement, Zweig told him that he could not take a photo and that the document
would be available in his Workday account. Zweig never explained to Galescu why he could not
take a photo of the Confidentiality Agreement and Galescu never told Zweig why he wanted to
take a picture. Although later the Union complained to members of the California State
Assembly, there is no evidence that Zweig knew or could have known that Galescu sought a 10
photo of the Confidentiality Agreement for Section 7 purposes.
In sum, Respondent did not violate the Act as alleged in paragraphs 7(a) and (b), and the
complaint allegations are dismissed.
15
V. COMPLAINT PARAGRAPHS 7(C) THROUGH 7(I) AND 7(N) THROUGH 7(P): RESPONDENT
VIOLATED SECTION 8(A)(1) OF THE ACT ON FEBRUARY 10 AND MAY 24 WHEN
EMPLOYEES PASSED OUT LEAFLETS
The General Counsel alleges at complaint paragraphs 7(c) through (i) that on February 20
10, Respondent’s various security guards, who are agents of Tesla, on four separate occasions
restrained and coerced employees who were engaged in leafleting in Respondent’s parking lot,
outside the Fremont facility, by repeatedly asking them to produce their employee badges and/or
telling them to leave the premises (GC Br. at 53–57). The General Counsel also alleges at
complaint paragraphs 7(n) through (p) that Respondent’s security guards acted in a similar25
manner on May 24, when employees were leafletting in Respondent’s parking lot outside the
Fremont facility (GC Br. at 57–58). Respondent argues that the General Counsel failed to prove
that the unidentified security guards and human resources person are agents of Respondent (R
Br. at 56–59).26 Respondent also argues that the security guards lawfully requested the
employees’ badges (R Br at 59-62). 30
February 10 Leafletting
On February 10, the day after Moran published his blog post, “Time for Tesla to Listen,”
members of the VOC first passed out leaflets at the Fremont facility parking lot (Tr. 450). The 35
double-sided leaflet included Moran’s blog post on the frontside and a letter from the State of
California Assembly to Respondent regarding the Confidentiality Agreement on the backside
(Tr. 48; GC Exh. 8). Moran, Sanchez, and Ortiz, who are members of the VOC, as well as other
Tesla employees, passed out the leaflets in the parking lot where employees and members of the
public may park. 40

26 Respondent does not argue that the “red shirt male supervisor no. 1” as identified in the complaint
is not a supervisor or agent of Respondent. But even if Respondent does argue as such, the red colored
shirt male supervisor is also an agent of Respondent due to his apparent authority during the questioning
of Sanchez.
JD(SF)–33–19
16
Sanchez testified that he arrived at the Union’s office, which is one block from the
Fremont facility, on February 10, at 3:30 a.m. to pick up approximately 100 leaflets (Tr. 90, 140–
141; GC Exh. 8). Thereafter, Sanchez drove and parked his car by door 2 in the Fremont
facility’s parking lot (Tr. 92–94; GC Exh. 4). As he drove through the parking lot, Sanchez was
not required to show or scan his employee badge, which is consistent with his prior experiences 5
entering the Fremont facility parking lot.27
After Sanchez parked, he stepped out of his car and walked towards door 2. Sanchez
passed out leaflets to at least three employees at door 2 (Tr. 94–95; GC Exh. 8). In addition, an
unidentified security guard, who Sanchez described as a young male Latino and10
based on the testimony of witnesses is protection associate David Rios (Rios), approached him
outside of door 2, asking if Sanchez was an employee (Tr. 95–96).28 Sanchez told the security
guard that he had been an employee for almost 5 years. Sanchez testified that the security guard
told Sanchez to leave the property. Sanchez responded by stating that he was not working, was
outside the Fremont facility, and legally had the right to be in the parking lot (Tr. 96). This brief 15
encounter lasted less than three minutes, and upon its conclusion, the security guard went back
inside of the Fremont facility via door 2 (Tr. 96).
Sanchez remained at door 2 and continued to pass out leaflets (Tr. 97). Approximately 5
minutes later, Rios returned to speak to Sanchez. Sanchez testified that the security guard 20
“aggressively” asked for his employee badge (Tr. 97–98). Sanchez showed the security guard
his employee badge, and the security guard appeared to take a photo of it with his phone (Tr. 98–
99). The security guard handed the employee badge back to Sanchez. The security guard told
Sanchez to again leave the parking lot. Sanchez again stated that he was within his legal rights
to remain in the parking lot. Rios testified that Sanchez handed him a leaflet (Tr. 1712–1713). 25
Rios then returned to inside the Fremont facility via door 2.29 Sanchez moved from door 2 to
door 1.

27 While on medical leave, Sanchez continued to have access to his work email and was never told he
could not return to the Tesla parking lot (Tr. 144, 154–155). I credit Sanchez’ testimony as it was
uncontradicted by any evidence.
28 In the complaint, the General Counsel did not identify any of the names of the security guards.
Respondent complains in its Brief that it was prejudiced by not knowing the identities of these security
guards, and that I erroneously precluded Respondent’s use of photographs of security guards during
cross-examination (R Br. at 44–45). I denied Respondent the opportunity to use the photographs in cross-
examination on day 3 of the trial because Respondent had not produced these same photos with names in
response to the General Counsel’s subpoena duces tecum (Tr. 417). When the trial resumed in September
2018, 4 months after the first 4 days of trial, Respondent then provided the names associated with these
security guard photos to the General Counsel pursuant to the subpoena duces tecum (Tr. 790–791).
Despite the General Counsel’s objections due to the late receipt of these names with security guard
photographs, I permitted Respondent to use the photographs to exam witnesses. Respondent cannot now
claim prejudice for failing to timely comply with General Counsel’s subpoena duces tecum at the start of
the hearing.
29 These two incidents with Rios as the young male Latino security guard at door 2 are the allegations
in complaint par. 7(d).
JD(SF)–33–19
17
As Sanchez began to walk towards door 1, he heard someone exiting from door 2 again.
Sanchez turned around, and a different security guard, described by Sanchez as “older middle
eastern,” walked down the stairs and asked him what he was doing (Tr. 100). Sanchez
responded that he was handing out leaflets. This security guard asked what the leaflet was for
and was it for a union (Tr. 101). When Sanchez responded in the affirmative, the security guard 5
said that unions are worthless, and he should not join one. Sanchez responded that the security
guard’s opinion was his own, and the security guard then asked for his employee badge, which
Sanchez provided for the second time that morning (Tr. 101–102). This security guard also
appeared to take a picture of Sanchez’ employee badge with his phone (Tr. 102). Sanchez then
began walking towards door 1. Meanwhile, the security guard turned back towards door 2. Rios 10
testified that he overheard this conversation and confirmed that the security guard made a
comment that unions were no good and did nothing for him (Tr. 1704–1708).
After Rios’ encounter with Sanchez, Rios phoned Senior Security Manager Greg Slettvet
(Slettvet) to let him know what was happening (Tr. 1713–1714).30 Slettvet told Sanchez to find 15
out if the people handing out leaflets were employees, to document everything, and if they were
not employees to tell them to leave as they were trespassing (Tr. 1715, 1752).31 Thereafter, a
few minutes after Sanchez left for door 1, Rios also went to door 1 (Tr. 1749).
Meanwhile, Ortiz’ work shift ended around 2:30 a.m., and he then went to the Union’s 20
office and waited for Moran and a group of employees who planned to leaflet around 4:30 a.m.
at the Fremont facility (Tr. 451, 689). Ortiz and Moran drove to the Fremont facility, parked by
door 1, and began leafletting (Tr. 452–453, 777). After being at door 2, Sanchez met Ortiz and
Moran as well as Mike Catura (Catura) at door 1 (Tr. 106).32 Moran testified that Sanchez told
him that he had been at door 2 but was being harassed so he came to door 1 to help pass out 25
leaflets (Tr. 695, 777–778). Ortiz and Moran stood by the ramp at door 1 to pass out leaflets
while Catura and Sanchez stood by the stairs to pass out leaflets (Tr. 107).
Twenty minutes after Sanchez arrived at door 1, at approximately 4:20 a.m., two security
guards, one of whom was Rios, drove slowly by Sanchez, Moran, Ortiz and Catura in a Tesla 30
security vehicle (Tr. 108). Rios testified that he arrived at door 1 at approximately 4:23 to 4:24
a.m. to speak to Moran since Sanchez told him that the author of the leaflet blog post was at door
1 (Tr. 1749). Rios sought to gather information as asked by Slettvet (Tr. 1749). Rios testified
that he spoke to Moran, Ortiz and Catura and told them that if they were not employees they
would need to leave, but if they are employees, they need to show him their employee badges 35
(Tr. 1718–1719, 1746). Moran, Ortiz and Catura responded that they were employees and
provided their employee badges (Tr. 1718–1720). Rios took pictures of their employee badges
since he was asked to document “everything” and let the three employees continue passing out
leaflets (Tr. 1720). Rios then left the four employees to leaflet.
40

30 Rios denied telling Sanchez to leave the Fremont facility parking lot or to stop passing out leaflets
(Tr. 1732). I cannot credit Rios’ testimony as the sequence of events makes it more likely than not that he
twice told Sanchez to leave the Fremont facility parking lot prior to talking to Slettvet as these two
encounters with Sanchez took place approximately 5 minutes apart.
31 Slettvet did not testify at the hearing.
32 Catura did not testify at the hearing.
JD(SF)–33–19
18
Before Rios’ shift ended, he sent an email to Slettvet summarizing the morning events
and noted the names of the persons handing out leaflets along with their employee badge
numbers (R Exh. 34). Rios later sent an email with the employee badge pictures he took that
morning to Slettvet (R Exh. 35; Tr. 1751).
5
Five to 10 minutes after Rios left, at around 4:45 to 5 a.m., a female security guard
partially exited door 1 on the ramp side (Tr. 455–456, 702). The female security guard told
Moran, Ortiz, Sanchez, and Catura that they should leave and were not allowed to be in the
Fremont facility parking lot (Tr. 110, 455, 457, 702). Moran told the female security guard that
they are Tesla employees and have every right to be there to distribute leaflets (Tr. 458, 703). 10
The security guard stated that she needed to document Moran’s name, and he asked for her name
as well (Tr. 702–703). The security guard then went back inside door 1 to her security podium.33
Thereafter, Moran, Ortiz, Sanchez, and Catura continued to distribute their leaflets for
another 10 to 15 minutes when another male security guard exited door 1 (Tr. 459, 703–704). 15
This male security guard also told them to leave the Fremont facility parking lot, and Moran and
Sanchez stated that they were in the parking lot within their legal rights (Tr. 112). This security
guard asked for their employee badges, and he appeared to take a photo of each employee badge
with his phone. Thereafter, the security guard re-entered door 1.34 Sanchez, Ortiz, Moran, and
Catura continued to hand out leaflets until about 5:20 to 5:30 a.m. when Moran began his work 20
shift and Ortiz went to the union office (Tr. 690–691). Catura stopped passing out leaflets at
5:45 a.m. when his work shift began, and Sanchez continued to hand out leaflets until 6:20 a.m.
(Tr. 113).
Sanchez then drove to Respondent’s north admin building and parked in the adjacent 25
parking lot so he could pass out more leaflets (Tr. 115; GC Exh. 5). On his walk towards door 3,
Sanchez passed out leaflets to employees (Tr. 115–116). Sanchez arrived at door 3 at
approximately 6:25 to 6:30 a.m. (Tr. 120). Five minutes later, a different female security guard
exited the interior of the Fremont facility at door 3. This female security guard asked Sanchez if
he was an employee, to which is responded in the affirmative and offered the number of years he 30
had worked at Tesla (Tr. 122). The security guard told him to leave the Tesla parking lot and
asked for his employee badge. Sanchez offered his employee badge to the security guard who
“snatched [his] employee badge aggressively from [his] hand” and appeared to take a photo of it
with her phone (Tr. 122). The security guard handed the employee badge back to Sanchez and
re-entered the Fremont facility at door 3.35 35
Sanchez continued to hand out leaflets for a few more minutes until 6:40 a.m., took a
break in his car, and then began leafletting again at 8 a.m. (Tr. 123). After handing out more
leaflets, Sanchez then decided to go to another parking lot where the Fremont facility’s back
entrance is located (Tr. 124). At this location, Sanchez continued to talk to employees. Sanchez 40
then attempted to enter the Fremont facility from this back entrance due to his need to use the
restroom, but when he scanned his employee badge for the first time that morning, the door
would not unlock. Thus, a security guard, whom Sanchez had not yet met that morning, at the

33 This incident with the female security guard at door 1 is the allegation in complaint par. 7(e).
34 This incident with the male security guard at door 1 is the allegation in complaint par. 7(f).
35 This incident with the female security guard at door 3 is the allegation in complaint par. 7(g).
JD(SF)–33–19
19
exterior of the back entrance used a walkie-talkie to call in his employee badge number (Tr. 125–
126). Three minutes later, an unidentified male employee wearing a red colored Tesla shirt came
out of the back entrance and asked, “Are you Jose Moran” (Tr. 126–127). Sanchez responded
that he was not but that he was with him. This unidentified employee told Sanchez to leave the
premises.36 Sanchez responded that he was there within his legal rights and questioned whether 5
the individual sought to take away his rights (Tr. 127). Thereafter, the individual took out his
phone, aimed the back of it where the camera lens is located 6 inches away from Sanchez’ face,
and dialed the phone. Sanchez testified that the ring tone sounded like the Apple iPhone
ringtone for the FaceTime function. Sanchez then heard from the phone a female’s voice who
stated that she noticed that he was on a leave of absence due to injury and should be home 10
resting. Sanchez responded that he was on the property within his legal rights, was not acting
contrary to his restrictions, and only handing out leaflets (Tr. 129). The female individual told
Sanchez to go home to rest and asked him to again leave the premises. Sanchez then left the
Fremont facility.37
15
Sanchez testified that he took three smoking breaks in the front parking lot during each of
his work shifts, and only once did a security guard ask him to show his employee badge (Tr. 83;
GC Exh. 36). Sanchez also testified that no security guard had ever told him to leave the
Fremont facility parking lot when he was on his smoke breaks (Tr. 83).
20
Sometime in February, according to Jeremie Hansen (Hansen), Slettvet, Hansen’s
supervisor, told him to allow employees to engage in leafletting if the employees were not
working and distributing only in nonwork areas (Tr. 1448, 1477).38 Hansen testified that he
shared this information from Slettvet to Respondent’s employees who reported to him as well as
with the contract security guard manager, but Hansen could not recall when specifically, he 25
provided these instructions to the security guards (Tr. 1450, 1477, 2441–2443). The evidence
shows that Slettvet first documented his instructions in September, but Slettvet orally
communicated his instructions prior to then (R Exh. 21).

36 This incident with the male, red colored Tesla shirt wearing employee is the allegation in complaint
par. 7(h).
37 This incident with the female employee on the phone is the allegation in complaint par. 7(i).
38 Several security employees corroborated Hansen’s testimony regarding instructions from Slettvet
on how to handle employees and non-employees who leaflet in the parking lot at the Fremont facility.
For example, an email on February 10 at 6:26 a.m. from Samuel Ali (Ali), the grave shift supervisor for
Securitas, corroborates Hansen’s testimony (R Exh. 20). Ali noted in an email to communicate to the
next security shift that union advocates were present at doors 1, 2, and 3 and that these union advocates
were Respondent’s employees which made the situation “a little difficult” (R Exh. 20). A copy of the
union leaflet was placed in the security control room. In response to Ali’s email, Ian McEwen (McEwen),
account manager for Securitas, replied that Slettvet asked that the union representatives only be identified
but security was not to interfere as they are employees and can be on the site (R Exh. 20). In addition, on
May 24, Felipe De La Cruz (De La Cruz), who is an operator at the security operations center or control
room, testified that at 6:01 a.m., he sent an email to Slettvet and Hansen with the subject line: “U.A.W.
activity” (R Exh. 44). De La Cruz reported that several people were handing out fliers outside the doors,
lobby, and gates (R Exh. 44; Tr. 2460). De La Cruz stated that he created a “ticket” and added all the
names of the employees handing out leaflets (R Exh. 44; Tr. 2445, 2468). De La Cruz testified that he
sent out all six patrols to look out for union activity (Tr. 2471). De La Cruz testified he sent the email to
Slettvet because Slettvet was interested in monitoring union activity (Tr. 2459–2460, 2471).
JD(SF)–33–19
20
May 24 Leafletting
On May 24, Branton Phillips (Phillips), who is a current material handler for Respondent,
drove to the Union’s office near the Fremont facility to pick up leaflets to pass out before his
work shift began at 6 a.m. (Tr. 390–392; GC Exh. 9). The leaflet included the Union slogan, 5
“Driving a Fair Future at Tesla,” and concerned injuries at Tesla. The title of the article, “The
Truth about Injuries at Tesla” discussed Cal/OSHA forms that employees obtained from
Respondent. The article also discloses that employees provided this data to a California non-
profit which analyzed the data. The leaflet provided the Union organizing office address as well
as the Facebook page and union campaign website. On the back side of the leaflet was the story 10
of a GA employee who had been injured several times while on the job.
Phillips, wearing his Tesla pants, shirt and cap, arrived at the parking lot near door 4 of
the Fremont facility a little past 5 a.m. (Tr. 392–393). Phillips entered door 4 by swiping his
employee badge which permitted him to enter the Fremont facility and walked up to the female 15
security guard at the podium. Phillips pointed to his picture on the female security guard’s
laptop, stating that was him and that he planned to hand out leaflets (Tr. 395-397). The female
security guard stated, “No, you can’t do that” (Tr. 398).39 Phillips told her to be very careful or
she could have a lawsuit on her hands.
20
Phillips then went outside of door 4 to pass out leaflets. Less than ten minutes later, a
male security guard approached Phillips with a walkie-talkie in his hands (Tr. 400–401). The
security guard said to Phillips, “so you’re the one with the fliers” (Tr. 401). Phillips stated that
he was. The security guard responded stating something to the effect of leave right now or be
fired (Tr. 401-402). Phillips told him that he was permitted to pass out leaflets by the National 25
Labor Relations Board. The security guard then asked to see his employee badge (Tr. 402).
Phillips gave the security guard his employee badge but due to its faded condition, the security
guard could not read it (Tr. 401–402).40 A second male security guard approached them. The
first male security guard again told Phillips to leave right away.41
30
Phillips became nervous and called the union office (Tr. 403-404). With the union office
on his speakerphone, Phillips told the union employee that the security guards were telling him
to leave. After a short exchange, the union employee told Phillips to not “be combative” and to
ask for the security guards’ identifications and employee badge numbers (Tr. 405). At this point,
a third security guard then showed up. Phillips heard the walkie-talkie sound of one of the 35
security guards where he heard the security guard report that Phillips refused to provide his
employee badge which is contrary to what occurred earlier (Tr. 406–406). Then, a Tesla security
vehicle arrived, and a fourth security guard exited the vehicle and spoke to the three security
guards present with Phillips (Tr. 409). Phillips testified that the fourth security guard who
stepped out of the Tesla security vehicle asked if Phillips was leafleting. One of the security 40
guards responded that Phillips had leaflets, and the fourth security guard from the security
vehicle responded that Phillips was permitted to leaflet (Tr. 411). The three security guards left

39 This incidents with the female security guard at door 4 is the allegation in complaint par. 7(o).
40 Even though his photo was faded, Phillips’s security badge continued to operate to open the door at
the Fremont facility (Tr. 419–420). Moreover, Phillips did not replace his badge until November.
41 This incident with the male security guard at door 4 is the allegation in complaint par. 7(p).
JD(SF)–33–19
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immediately but the fourth security guard in the Tesla security vehicle remained in the area for at
least 10 minutes while Phillips passed out leaflets (Tr. 411–412). Phillips stopped passing out
leaflets at 5:45 a.m. A computer assisted dispatch (CAD) report was generated on May 24 based
on a call received at 5:21 a.m. (R Exh. 23). This CAD report indicated that Phillips along with
Catura and Moran as well as non-employees passed out leaflets that day (R Exh. 23). Galescu 5
also passed out leaflets prior to the start of his shift (Tr. 856–857).
Credibility Findings
Here, the witnesses for both parties do not drastically differ as to what occurred on the 10
mornings of February 10 and May 24. Specifically, the General Counsel’s witnesses, aside from
some minor inconsistencies which are to be expected, testified similarly and with detail as to
what occurred during these leafletting events. I adopt the General Counsel’s witness’ version of
events due to the extraordinary details they testified about as to the timing of events, where they
were stationed, and with whom during the leafletting. Their collective testimony seemed truthful 15
and unrehearsed. In contrast, Respondent only presented one witness to some of the events of
February 10 while Respondent’s other witnesses did not engage in any conversations with the
employees on either morning and thus, are not witnesses to the complaint allegations.
Sanchez, who is a current production associate in GA on extended medical leave, 20
provided highly credible testimony as he provided details as to the events of February 10, when
he was leafletting. Moreover, even on cross-examination, Sanchez recalled how many female
security guards he spoke to disagreeing with the number presented to him in the questioning.
Sanchez recalled without contradiction, on cross-examination, the description of each guard at
each door and in the sequence in which he encountered them. To recall with details the events of 25
this morning with few inconsistent statements supports the truthfulness of his testimony. In
addition, Sanchez is a current employee which solidifies his credibility as he is testifying against
his pecuniary interests. See Avenue Care & Rehabilitation Center, 360 NLRB 152, 152 fn. 2
(2014); and Flexsteel Industries, 316 NLRB 745 (1995), affd. mem. 83 F.3d 419 (5th Cir. 1996).
30
Ortiz and Moran, a current employee, also provided corroborating testimony as to their
role and experience during the February 10 leafletting. Ortiz remained honest and calm when he
testified regarding the February 10 leafletting. Moran also did not waver in his testimony. For
example, Ortiz, Moran, and Sanchez testified consistently as to the physical positions of the
individuals passing out leaflets (Tr. 454–455). Their recollections seemed plausible considering 35
the sequence of events. Like Sanchez, Moran is testifying against his pecuniary interests.
As for the May 24 leafletting, I also found Phillips to be a highly credible witness as he is
a current employee and testifying against his pecuniary interests. Phillips provided specific
details as to the descriptions of the security guards he encountered. Phillips also remained calm 40
and steadfast during both his direct and cross-examinations. Furthermore, Phillips’ testimony
was not contradicted by any other witness or documentary evidence.
As for Respondent’s witness, Rios, who was employed directly by Respondent on
February 10, I do not credit the entirety of his testimony as it is inconsistent with the credited 45
evidence that proves to be logical in terms of the sequence of events. But I do credit his
testimony that Slettvet told him to determine whether those leafletting were employees by
JD(SF)–33–19
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checking their employee badges and if so to permit them to leaflet and to document their names.
Respondent’s other witnesses did not actually observe the alleged violations of the Act where
other security guards asked employees to leave the Fremont facility parking lot and/or repeatedly
asking them to produce their employee badges. However, like Rios, they did confirm that at
some point during the February 10 leafletting, Slettvet advised them to check on the employment 5
status of those who were leafletting, to document their names, and to permit them to leaflet if
they were employees.
Legal Analysis
10
An employer may not prohibit employees from distributing union literature in
nonworking areas on nonworking time. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803
(1945). Specifically, the Board has held that “[t]he distribution by off-duty employees of union
literature in company parking lots is clearly protected by Section 7 of the Act” absent a showing
that any work performed there is integral to the business operations. St. Luke’s Hospital, 300 15
NLRB 836, 837 (1990); Meijer, Inc., 344 NLRB 916, 917 (2005), enf. in relevant part 463 F.3d
354 (2006); Tri-County Medical Center, 222 NLRB 1089 (1976) (rule which denies off-duty
employees entry to parking lots, gates, and other outside nonworking areas will be found
invalid); Southern Bakeries, LLC, 368 NLRB No. 59, slip op. at 1–2 (2019) (citing Piedmont
Gardens, 360 NLRB 813 (2014)). In St. Luke’s Hospital, the Board held that an employer 20
violated Section 8(a)(1) of the Act when a director of security told an off-duty employee he
would need to leave the employer’s parking lot when he was found to be leafletting, and even
after asking if he was an employee, which he was, told the employee that he needed leave the
property. Id.42
25
The complaint allegations here concern the leafletting of union material by off-duty
employees on nonwork time in the Fremont facility parking lot on February 10 and May 24.
During events on February 10 and May 24, the credited evidence shows that employees were
told by Respondent’s security guards, human resources person and supervisor at various times to
leave the premises. They were also asked repeatedly to show their employee badges. Based on 30
Board law, Sanchez, Moran, Ortiz and Phillips lawfully engaged in protected concerted activity
when they passed out leaflets during nonduty time in Respondent’s parking lot. Respondent
does not argue that the parking lot is a work area but claims that it is considered private property
(R Br. at 42). Despite Respondent’s claim, Respondent does not make any arguments to support
a showing that a prohibition of leafletting is justified for business reasons. Moreover, the 35
General Counsel argues that Respondent’s security guards as well as human resources person
and supervisor restrained and coerced employees by repeatedly asking for their employee badges
and for telling the employees they must leave the Fremont facility parking lot.

42 In a health care setting, the Board has acknowledged an employer’s interest in limiting employee
solicitation or distribution based on patient care such that hospitals may be warranted to prohibit
solicitation and/or distribution in immediate patient care areas, but the employer carries the burden of
proving legitimate business considerations. See St. John’s Hospital & School of Nursing, Inc., 222
NLRB 1150 (1976); Beth Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978) (burden is on hospital to
show that the selective ban on solicitation is “necessary to avoid disruption of health-care operations or
disturbance of patients”).
JD(SF)–33–19
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Prior to analyzing whether the security guards and human resources person restrained and
coerced employees thereby violating Section 8(a)(1) of the Act, a question to be answered is
whether the security guards and human resources person are agents of Respondent within the
meaning of Section 2(13) of the Act. As set forth in Section 2(13), when making an agency
determination, “the question of whether the specific acts performed were actually authorized or 5
subsequently ratified shall not be controlling.” If they are not agents, then any unlawful
statements cannot be attributed to Respondent. The burden of proving an agency relationship is
on the party asserting its existence which in this instance is the General Counsel. “The agency
relationship must be established with regard to the specific conduct that is alleged to be unlawful.
An individual can be a party’s agent if the individual has either actual or apparent authority to act 10
on behalf of the party.” Cornell Forge Co., 339 NLRB 733, 733 (2003) (citing Pan-Osten Co.,
336 NLRB 305, 306 (2001)). “The test is whether, under all circumstances, the employees
‘would reasonably believe that the employee in question [the alleged agent] was reflecting
company policy and speaking and acting for management.” GM Electrics, 323 NLRB 125, 125
(1997); Southern Bag Corp., 315 NLRB 725, 725 (1994). The Board has found that security 15
guards may be agents of an employer as defined by Section 2(13) of the Act when the guard may
stop persons from entering a plant. Cooking Good Division of Perdue Farms, Inc., 323 NLRB
345, 351 (1997) (security guards placed in a position to stop individuals from entering premises
are cloaked with apparent authority).
20
The record established that the security guards were stationed at the entrances to each of
the doors of the Fremont facility as well as patrolling the parking lot. Furthermore, all security
guards, contractor or direct employee of Respondent, wore the same attire and drove
Respondent’s vehicles with the word, “Security” written on its sides. In addition, the security
guards possessed the authority to check an employee’s badge to determine whether the employee 25
could enter the Fremont facility. The morning of February 10, security guards at different times
asked Sanchez, Ortiz, Moran, and Catura for their employee badges. The morning of May 24,
security guards asked Phillips the same questions. But these same security guards, after learning
that the individuals were employees, still told them to leave the parking lot. Also, the security
guards repeatedly asked these same individuals for their employee badges during the entire time 30
of their leafletting. Based on the credited evidence, Sanchez, Ortiz, Moran, Catura, and Phillips
could reasonably believe that the security guards acted as Respondent’s agents with apparent
authority and were acting on Tesla’s orders and behest. Accordingly, Respondent’s security
guards who interacted with Sanchez, Ortiz, and Moran on February 10 as well as with Phillips on
May 24, were agents of Respondent within the meaning of Section 2(13) of the Act. In addition, 35
the human resources person who spoke on the phone with Sanchez acted as an agent of
Respondent as she also told him to leave the premises after confronting him with his medical
leave status. It should be noted that even if the human resources person who confronted Sanchez
was not actually a human resources person, the result of her apparent authority is not diminished;
her actions, and not her official title, is of import.40
As to whether the security guards’ conduct was lawful, the General Counsel’s witnesses
all testified consistently that they were told numerous times to leave the Fremont facility parking
lot even after the security guards verified their employment with Tesla. When off-duty
employees are told to leave an employer’s parking lot when passing out union-related literature 45
via leaflets, Respondent’s actions violate the Act. See New York New York Hotel & Casino, 356
NLRB 907, 913 (2011) (“it is well established that an employer that operates on property it owns
JD(SF)–33–19
24
ordinarily violates the Act if it bars its employees from distributing union literature during their
nonwork time in nonwork areas of its property. Moreover, such an employer’s off duty
employees have a presumptive right to return to their worksite and gain access to exterior,
nonwork areas for purposes of otherwise protected solicitation”). Here, Rios told Sanchez twice
to leave the Fremont facility parking lot the morning of February 10, after he confirmed that 5
Sanchez was an employee. Later, a female and male security guard told Moran, Ortiz, Sanchez,
and Catura that they should also leave the Fremont facility parking lot. Almost 2 hours after they
began leafletting, Sanchez went to the north admin building and was told three more times (by a
security guard, a male supervisor, and a human resources person) to leave the Fremont facility.
On May 24, a security guard told Phillips that he could not pass out leaflets, and another security 10
guard told Phillips twice that he needed to leave the Fremont facility parking lot even though
Phillips had provided his employee badge. Despite verifying employment, Respondent’s agents
continued to question the individuals’ employment status on both dates and told them to leave
the Fremont facility parking lot. Even though the employees continued to pass out leaflets after
the security guards told them to leave the Fremont facility parking lot, their actions of telling the 15
employees that they needed to leave, and thereby stop leafleting, without a proper business
justification violates Section 8(a)(1). Likewise, the actions of the male supervisor and human
resources person telling Sanchez he needed to leave the Fremont facility violates Section 8(a)(1).
Thus, Respondent violated Section 8(a)(1) of the Act as alleged by the General Counsel in
complaint paragraphs 7(c) through (i) and (n) through (p). 20
Respondent’s defenses are without merit. Respondent argues that its defense was
hampered by the General Counsel not naming the security guards, the supervisor, and the human
resource person who spoke to the employees on February 10 and May 24. I reject Respondent’s
argument. Respondent could have conducted its own inquiry as to who the employees could 25
have possibly spoken to during those morning leafletting periods. The fact that the employees do
not know the names of those to whom they spoke is reasonable considering the security guards,
the supervisor and human resources person did not identify themselves. The General Counsel’s
complaint allegations were sufficiently pled to place Respondent on notice of the allegations
against it, and its method or manner to defend itself is its own responsibility.43 30
Respondent argues it had the right to verify whether the individuals who were passing out
leaflets were employees. Certainly, Respondent could determine whether the individuals passing
out leaflets were employees but even after checking on the employment status of the individuals,
Respondent’s various security guards, male supervisor and human resources person continued to 35
tell the employees to leave the Fremont facility parking lot and therefore, stop passing out
leaflets. Respondent claims that even if the security guards, male supervisor, and human
resources person are considered its agents, they acted in excess of their authority and Respondent
should not be liable for their actions. I do not agree. As agents of Respondent, the security
guards, male supervisor, and human resources person’s conduct of informing the leafletting 40
employees that they had to leave the parking lot are properly attributable to Respondent. See
Ideal Elevator Corp., 295 NLRB 347, 347 fn. 2 (1989) (“the Board continues to hold that under
Sec. 2(13) of the Act ‘an employer is bound by the acts and statements of its supervisors whether

43 Respondent never filed a motion for a bill of particulars in response to the General Counsel’s
complaint.
JD(SF)–33–19
25
specifically authorized or not.’” (quoting Dorothy Shamrock Coal Co., 270 NLRB 1298, 1299
(1986), enfd. 833 F.2d 1263 (7th Cir. 1987)).
Even if Respondent is liable for their agents’ actions, Respondent argues that the
employees continued to leaflet even after they were asked for their employee badges. The Board 5
does not consider the motivation behind remarks or their actual effect. Miller Electric Pump &
Plumbing, 334 NLRB 824 (2001). Instead, “the basic test for evaluating whether there has been
a violation of Section 8(a)(1) is an objective tests, i.e., whether the conduct in question would
reasonably have a tendency to interfere with, restrain, or coerce employees in the exercise of
their Section 7 rights, and not a subjective test having to do with whether the employee in 10
question was actually intimidated.” Multi-Ad Services, 331 NLRB 1226, 1227–1228 (2000)
(emphasis in original), enfd. 255 F.3d 363 (7th Cir. 2001). Thus, I find that Respondent violated
Section 8(a)(1) of the Act as alleged in complaint paragraphs 7(c) through (i) and (n) through (p).
VI. COMPLAINT PARAGRAPH 7(J): RESPONDENT VIOLATED SECTION 8(A)(1) OF THE ACT 15
WHEN ON MARCH 23, SUPERVISOR ARMANDO RODRIGUEZ TOLD EMPLOYEES THEY
COULD NOT DISTRIBUTE STICKERS, LEAFLETS OR PAMPHLETS WITHOUT
RESPONDENT’S APPROVAL AND THREATENED TERMINATION IF THEY VIOLATED THIS
RULE
20
The General Counsel alleges that on March 23, Supervisor Armando Rodriguez
(Rodriguez) informed employees that distribution of stickers, pamphlets and leaflets would be
grounds for termination which violates the Act (GC Br. at 58–60). Respondent argues that
Rodriguez lawfully informed employees that Respondent’s property could not be vandalized (R
Br at 65–66).25
On March 23, Galescu participated in a prestart meeting with approximately 30 shift co-
workers led by Rodriguez (Tr. 843).44 Galescu testified that during this meeting, Rodriguez
pulled out his black notebook, and announced, “Stickers, leaflets, and pamphlets that’s not
approved by Tesla could be—passing them out could be a terms of termination and be active 30
vandalism” (Tr. 844, 1063).45 Rodriguez asked if anyone had questions but no one asked any
questions. Union stickers, pamphlets and business cards had been passed out by associates in the
month prior to Rodriguez’ March 23 prestart meeting (Tr. 844–845).
Rodriguez testified that in March for 1 to 2 weeks he noticed UAW stickers placed in the 35
bathroom on stalls as well as on information sheets (known as “flow downs”) (Tr. 2137, 2148–
2149). However, Rodriguez admitted that he did not document the UAW stickers he saw on the
walls of the bathrooms (Tr. 2153). As a result of his observations, during a prestart meeting on
March 23, Rodriguez told his team that vandalism is not tolerated at Respondent (Tr. 2138,
2146). In contrast to Galescu, Rodriguez testified, “We can’t be defacing Tesla property, 40

44 At a prestart meeting, which occurs before the beginning of a work shift, a supervisor usually
discusses safety and production (Tr. 843).
45 In his Board affidavit, dated April 27, Galescu stated, “Armando pulled up a little black book, a pad
of paper, and he read from his notebook. Armando said something like, ‘Stickers or leaflets and
pamphlets that are not approved by Tesla—you guys can’t pass them out unless it is approved by Tesla”
(Tr. 1065). Galescu’s testimony at the hearing and during the investigation in his affidavit are consistent,
which reinforces his credible testimony.
JD(SF)–33–19
26
especially with literature that’s not Tesla approved [. . .] If you guys want to put it on your
person, put it on your hat, put it on your shirt, it’s all – all that’s allowable, but we just can’t post
stuff on the wall because it’s considered vandalism, and—and doing so could—a disciplinary
action could—could—it could lead to disciplinary action if you’re caught vandalizing Tesla
property” (Tr. 2138). Rodriguez denied reading from a black book in which he keeps notes to be 5
discussed during prestart meetings (Tr. 2147–2148). On cross-examination, Rodriguez could not
recall any other topics he discussed during this prestart meeting (Tr. 2156). Rodriguez also
denied discussing the passing out of pamphlets (Tr. 2139, 2144).

Credibility Findings10
I adopt Galescu’s version of the prestart meeting held on March 23. Galescu, who is a
current employee testifying against his pecuniary interests, testified with conviction as to what
occurred during the meeting. Galescu’s recollection at the hearing of what Rodriguez stated
during the meeting regarding preapproval to pass out stickers, leaflets or pamphlets closely15
matches his Board affidavit taken only one month after the meeting. Galescu did not mention in
his Board affidavit that Rodriguez threatened termination if they passed out nonapproved
material, but disciplinary action was mentioned as admitted by Rodriguez. In contrast,
Rodriguez could not recall any other events during that day including other topics discussed
during the meeting. This lack of recollection of other topics discussed reflects poorly on his 20
credibility. Thus, I credit Galescu’s testimony over Rodriguez’ testimony.
Legal Analysis
The Board has held that any rule requiring employees to receive preapproval for 25
engaging in protected concerted activity, such as distributing union paraphernalia, during
nonwork times and in nonwork areas is unlawful. See Enterprise Products Co., 265 NLRB 544,
554 (1982), citing Peyton Packing Co., 49 NLRB 828 (1943), and Stoddard-Quick Mfg. Co., 138
NLRB 615 (1992); Brunswick Corp., 282 NLRB 794, 795 (1987). The Board has also held that
threatening employees with reprisals for engaging in union or other protected concerted activities 30
is coercive to the exercise of their Section 7 rights under the Act. Metro One Loss Prevention
Services Group, 356 NLRB 89, 89 (2010) (employer violates Sec. 8(a)(1) if it communicates to
employees that it will jeopardize their job security, wages, or other working conditions if they
support the union); Baddour, Inc., 303 NLRB 275 (1991) (an employers’ threats of discipline or
job loss for participation in protected concerted activities constitute violations of the Act). The 35
Board has applied this theory to explicit or implicit threats to employees, including the loss of
their jobs or other adverse work consequences. Jewish Home for the Elderly of Fairfield County,
343 NLRB 1069, 1091–1096 (2004) (employer violated Sec. 8(a)(1) of the Act by threatening
loss of benefits, loss of jobs, and closure of the facility if the employees supported the union);
Sheraton Hotel Waterbury, 312 NLRB 304, 305 (1993) (implied threat contained in employer’s 40
posting violated Sec. 8(a)(1) of the Act); Metro One Loss Prevention Services Group, supra at
89–90 (employer implied working conditions could deteriorate if the employees supported the
union organizing drive in violation of Sec. 8(a)(1) of the Act).
The credited evidence shows that Rodriguez told employees that they could not distribute 45
any stickers, leaflets or pamphlets not approved by Respondent, which contradicts Respondent’s
argument that Rodriguez validly told employees not to vandalize Respondent’s Fremont facility.
JD(SF)–33–19
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Rodriguez’ statement to the employees clearly violates Section 8(a)(1) of the Act. In addition,
Rodriguez’ threat that employees may be terminated for distributing stickers, leaflets, or
pamphlets without prior approval from Respondent also violates Section 8(a)(1) of the Act. In
sum, Respondent violated Section 8(a)(1) as alleged in complaint paragraph 7(j).
5
VII. COMPLAINT PARAGRAPHS 7(K) AND 7(Q): RESPONDENT DID NOT VIOLATE SECTION
8(A)(1) OF THE ACT WHEN ON APRIL 5, RESPONDENT BY HUMAN RESOURCES
PARTNER DAVID ZWEIG ATTEMPTED TO PROHIBIT EMPLOYEES FROM DISCUSSING
SAFETY CONCERNS WITH OTHER EMPLOYEES AND/OR THE UNION, BUT VIOLATED
SECTION 8(A)(1) OF THE ACT WHEN ON MAY 24, HUMAN RESOURCES BUSINESS 10
PARTNER LIZA LIPSON INTERROGATED EMPLOYEES ABOUT THEIR PROTECTED
CONCERTED ACTIVITIES
The General Counsel argues that Respondent created an unlawful rule when placing a
“CONFIDENTIAL” watermark on safety logs and summaries given to Galescu and Ortiz which 15
prevented them from sharing these logs with other employees (GC Br. at 60–62). The General
Counsel further alleges that Lipson violated the Act when she interrogated Galescu and Ortiz
about their protected concerted activity regarding the safety logs they received (GC Br. at 62–
64). Respondent argues that Zweig did not prohibit the employees from sharing the safety logs
with other employees and with the Union (R Br. at 69–73). Furthermore, Respondent argues that 20
any confusion as to confidentiality was clarified in subsequent correspondences between the
employees and Respondent (R Br at 73–74). Moreover, Respondent argues that Lipson did not
interrogate employees about the safety logs (R Br. at 91–94).
On April 4, Galescu, on behalf of Ortiz and himself, sent an email to several Tesla’ 25
supervisors and/or agents including Hedges requesting Cal/OSHA safety logs (Form 300) and
summaries (Form 300A) (GC Exh. 16; Tr. 469, 847). Respondent is required to complete
Cal/OSHA safety logs for every work-related death and every work-related injury or illness
which meets a certain criterion including restricted work activity and days away from work.
Respondent is also required to complete a summary of work-related injuries on a Cal/OSHA 30
summary form. Galescu testified that he made the request for these Cal/OSHA documents
because he had been injured while working and had seen other employees get injured while
working, and thus, he wanted to inform the Union of the injury rates at Tesla (Tr. 846, 1037). In
his email, Galescu writes that there was a concern about the health and safety conditions at Tesla
and as such Ortiz and he were requesting copies of Cal/OSHA safety logs and summaries for the 35
current calendar year and five previous calendar years per the California Code of Regulations
(Tr. 845).
On April 5, Zweig responded via email to Galescu’s request (GC Exh. 17). Zweig agreed
to provide redacted Cal/OSHA logs and unredacted summaries to Galescu and Ortiz. Zweig 40
writes, “Cal/OSHA Form 300 and 300A annual summaries are being provided to you with the
understanding that you and Richard Ortiz are exercising your rights as current employees to
access injury and illness records [. . .]. To protect the privacy and confidential health
information of injured and ill employees, we have not provided names on the Cal/OSHA logs”
(GC Exh. 17). The top of the Cal/OSHA 300 logs contained the following: “Attention: This 45
form contains information relating to employee health and must be used in a manner that protects
the confidentiality of employees to the extent possible while the information is being used for
JD(SF)–33–19
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occupational safety and health programs” while the summaries note, “Employees, former
employees, and their representatives have the right to review the Cal/OSHA Form 300 in its
entirety” (GC Exh. 17, 18).46 In addition, stamped in a watermark across the Cal/OSHA logs and
summaries was the word “CONFIDENTIAL” (GC Exh. 17, 18). Zweig included Hedges in both
emails to Galescu and Ortiz. 5
On April 13, Galescu, along with Ortiz, sent a reply via email to Zweig and Hedges (GC
Exh. 20). Galescu requested unredacted copies of the Cal/OSHA logs. Galescu also noted that
Federal and State laws permitted him to share these documents with his coworkers, former
employees, and authorized representatives. Thus, Galescu sought clarification on why the 10
documents provided were marked as confidential (GC Exh. 20).
On April 14, Seth Woody (Woody), director of global environmental health and safety,47
replied to Galescu’s email and declined to provide the information unredacted to protect the
privacy interests of current and former employees (GC Exh. 21). Woody wrote, “We placed the 15
“confidentiality” watermark on the documents out of concern that the documents may be shared
with individuals or organizations who are not authorized by Cal. Code Regs. Title 8, §14300.35
to receive injury and confidential health information. We are not attempting to prohibit you from
sharing the documents with current or former employees” (GC Exh. 21). On April 21, Galescu
replied to Woody requesting the legal basis for his position (GC Exh. 22). Thereafter, on April 20
28, Woody responded to Galescu, providing unredacted copies of the Cal/OSHA logs (GC Exh.
23).48 Woody wrote, “We remind you that Cal. Code Regs. Title 8, §14300.35 provides that you
may share these documents only with current and former employees or authorized
representatives” (GC Exh. 23). Galescu discussed the unredacted Cal/OSHA summaries and
logs with his representatives (Tr. 1049). 25
In response to the release of the unredacted Cal/OSHA logs and summaries, on May 1,
Hochholdinger sent an email to Hedges to be disseminated to all production employees
concerning safety initiatives and progress (R Exh. 2). In this email, Hochholdinger summarized
safety progress at the Fremont facility as well as the development of safety teams led by 30
production associates and ergonomic improvements. In addition, Hochholdinger informed the
employees that an employee requested Tesla’s Cal/OSHA logs, and that Respondent was
“required by law to provide them in their entirety” (R Exh. 2). Hochholdinger further writes,
“We wanted to provide advance notice to employees, as we believe this request is intended to
ultimately make this information public despite our efforts to protect your privacy” (R Exh. 2). 35
If employees had any questions, they could email the support team.
On May 24, approximately 1 month after receiving the Cal/OSHA logs and summaries
and on the same day as employees passed out leaflets concerning safety issues at the Fremont
facility, Hedges asked Lipson with meet with Ortiz and Galescu to discuss Respondent’s concern 40
that the Cal/OSHA logs had been shared with individuals outside Tesla (Tr. 2362–2364; GC

46 The Cal/OSHA 300A summaries do not appear to contain any personally identifiable information
in contrast to the Cal/OSHA 300 logs which includes the names of injured or ill employees.
47 Respondent admits Woody is a Sec. 2(11) supervisor as defined by the Act. Woody did not testify.
48 For purposes of this hearing, I ordered the General Counsel to redact the exhibit to protect any
personally identifiable information as the names of the individuals listed are not relevant in this decision.
JD(SF)–33–19
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Exh. 9). Prior to this meeting, Lipson had been provided a copy of the May 24 union leaflet by
HR Partner Tori Tanaka (Tanaka) (GC Exh. 53). The leaflet mentioned that employees recently
received copies of Cal/OSHA logs and summaries which they shared with a California non-profit
organization (GC Exh. 9).
5
Thus, Lipson, at approximately 7:15 to 7:30 p.m., approached Ortiz (Tr. 482). Ortiz
testified that Lipson told him that she wanted to speak about his performance (Tr. 482). Lipson
and Ortiz went into a nearby office where Lauren Holcomb (Holcomb), a senior environmental
health and safety specialist, was present (Tr. 483).49 Lipson spoke first, informing Ortiz that he
was doing a good job.50 She then asked what Ortiz did with the Cal/OSHA 300 logs (Tr. 483–10
484). Ortiz responded that he did not do anything with them. Lipson asked Ortiz if he received
the Cal/OSHA 300 logs to which Ortiz responded that he had. Lipson then asked Ortiz if anyone
else had done anything with the Cal/OSHA 300 logs which Ortiz denied. Lipson also asked
Ortiz if Galescu had done anything with the Cal/OSHA 300 logs, and Ortiz responded that
Galescu had not done nothing in his presence (Tr. 486, 2352). After another question, Ortiz then 15
asked Lipson and Holcomb if they brought him into the office to talk about the Cal/OSHA 300
logs or his performance, and Holcomb stated that Ortiz was doing a great job and they
appreciated him (Tr. 485).51
Later that evening Lipson and Holcomb met with Galescu in a conference room (Tr. 20
857). Lipson started the meeting by informing Galescu that the meeting would not be recorded.
She then asked Galescu if he knew anyone who was able to access the Cal/OSHA 300 logs
outside of Tesla (Tr. 858). Galescu responded that the information was given to him and he
would not answer questions without his representative. Lipson then asked Galescu if he or
anyone else accessed the Cal/OSHA 300 logs outside of the system other than the information 25
provided to him by Respondent. Again, Galescu responded that he did not know anyone, and
that he would not answer any more questions without his representative. Lipson asked Galescu
again if he had accessed the Cal/OSHA 300 logs outside Tesla, and he stated that he had not and

49 Holcomb did not testify during the hearing but the notes she took during the meeting with Ortiz and
Galescu were admitted into evidence (GC Exh. 91). In these notes, Holcomb noted that Ortiz did not
know anything about the Cal/OSHA 300 logs except that he agreed to add his name to Galescu’s email
when Galescu requested the information from Tesla (GC Exh. 91). As for the meeting with Galescu,
Holcomb’s notes are generally consistent with his testimony.
50 Lipson testified that she began by telling Ortiz that the purpose of the meeting was to “talk about
some personal medical information of our employees that we believed had been sent externally” (Tr.
2352). Lipson testified that her meeting with Galescu began with her stating that the purpose of the
meeting was about a “concern of employees’ medical information that had been potentially released” (Tr.
2354). However, Holcomb’s notes indicate that Lipson began both meetings by stating that the purpose
of the meeting was concerns about employee’s health information being disclosed to the media (GC Exh.
91). This discrepancy is significant not only in determining Lipson’s credibility but also when analyzing
what, if anything, the employees were told as to the purpose of the meeting. This discrepancy is example
of why I do not credit Lipson’s testimony in its entirety. Galescu and Ortiz denied Lipson informed them
of the purpose of the meeting, and I credit their testimony (Tr. 483, 857). But even if Lipson did tell them
the purpose of the meeting, based on the inconsistency as described above, it is entirely unclear what she
told them the purpose of the meeting was.
51 On about May 25, Galescu and Ortiz filed a complaint with Cal/OSHA (Tr. 1086). Although
Respondent seeks to make issue of an alleged dismissal of the Cal/OSHA complaint, the results are
irrelevant here (R Exh. 32).
JD(SF)–33–19
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would not answer questions without his representative (Tr. 858). Lipson then asked Galescu to
whom he had given the Cal/OSHA 300 logs, and he responded again that he would not answer
questions (Tr. 859). Lipson asked who his representative was, and Galescu stated that his
representative was someone outside the building. The next day, Galescu sent Lipson an email
regarding the meeting they had the prior night (GC Exh. 48). 5
On June 6, Galescu, on behalf of Ortiz and himself, sent an email to Woody, Hedges,
Zweig, Lipson, and Holcomb with “personal representatives” noted in the email’s subject line
(GC Exh. 24). In this email, Galescu provided a chronology of events regarding their requests
for the Cal/OSHA logs and summaries, including a synopsis of their separate meetings with 10
Respondent’s representatives. Galescu wrote that the purpose of their meetings regarding the
Cal/OSHA logs and summaries was unclear but perhaps Respondent sought to know who their
personal representatives are and if they shared the information with their personal
representatives. Thus, Galescu shared the names of their personal representatives along with the
fact that they shared the Cal/OSHA logs and summaries with them. 15
Credibility Findings
Galescu, Ortiz, and Lipson did not contradict one another in any significant way as to
what questions were asked at the meetings. However, Lipson did appear to be a hesitant witness20
because throughout the cross-examination she looked over at Respondent’s attorneys and seemed
reluctant to provide responses during this portion of her examination. I cannot credit Lipson’s
testimony as to how she began the meeting and what she told the employees what the purpose of
the meeting was due to her change in demeanor from being an eager to reluctant witness on
direct and cross-examination, respectively. Most significantly, Lipson clearly knew about the 25
leafletting that occurred on May 24 due, at least in part, to a copy of the safety leaflet she
received. Lipson feigned ignorance as to the connection between the safety leaflet and why she
was asked by Hedges to question Galescu and Ortiz. Lipson also could not recall whether her
questions to Ortiz and Galescu occurred on May 24, the same day she was notified of the safety
leaflets discussing Cal/OSHA 300 logs. Based on what most likely occurred, I credit Galescu 30
and Ortiz’ testimony, and not Lipson’s testimony.
Legal Analysis
As discussed above, the Board has held that an employer violates Section 8(a)(1) when it 35
maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7
rights. Lafayette Park Hotel, supra. From the outset, I disagree with the General Counsel’s
premise that by placing the “CONFIDENTIAL” watermark on the Cal/OSHA safety logs and
summaries, Respondent promulgated an overbroad confidentiality rule violating Boeing.
Respondent merely placed the confidential watermark on the forms and explained clearly to 40
Galescu and Ortiz their justification for doing so: compliance with Cal/OSHA regulations. The
General Counsel failed to show that Respondent “maintains” a rule that the Cal/OSHA logs and
summaries are to remain confidential as Woody clarified that the information could be shared
with current and former employees and their personal representatives. See Flamingo Las Vegas
Operating Co., 360 NLRB 243, 243 and fn. 5 (2014) (employer did not promulgate a rule which 45
was directed to one employee and never repeated to any other employee as a general
requirement). Moreover, even if Respondent created a “rule” by placing this
JD(SF)–33–19
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“CONFIDENTIAL” watermark on the documents, the rule in no way chills employees in the
exercise of their Section 7 rights due to Woody’s explanation to Galescu and Ortiz. The General
Counsel also claims that the “CONFIDENTIAL” watermark is in direct response to Ortiz and
Galescu attempt to use the information for Section 7 purposes. The timing of events does not
support such a conclusion as the workplace petition and leafletting on safety issues occurred one 5
month after their request for this information. Thus, this complaint allegation at paragraph 7(k)
is dismissed.
When evaluating alleged interrogations, the Board examines all the circumstances to
determine if the questioning would have reasonably tended to restrain or coerce employees in the 10
exercise of protected concerted activity. See Rossmore House, 269 NLRB 1176, 1178 (1984),
affd. sub. nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985)
(the Board set forth a test for examining whether an interrogation is unlawful). Factors to
considered include the questioner’s identity, the nature of the relationship between the questioner
and the employee, the place and method of questioning, the nature of the information sought and 15
whether it would reveal previously undisclosed union sympathies or activities, whether the
questioner offered any legitimate explanation for the question or assurance against reprisal, the
truthfulness of the employee’s reply, and whether there is a history of employer hostility to union
activity. See id. at 1178 and n. 20; Shamrock Foods Co., 366 NLRB No. 117, slip op. at 16–17
(2018), enfd. --- Fed. Appx. ---, 2019 WL 3229142 (D.C. Cir. July 12, 2019); Novato Healthcare 20
Center, 365 NLRB No. 137 (2017), enfd. 916 F.3d 1095, 1106 (D.C. Cir. 2019). The Board also
considers whether the interrogated employee is an open and active union supporter. See, e.g.,
Southern Bakers, LC, 364 NLRB No. 64, slip op. at 7 (2016), enfd. in relevant part 871 F.3d 811
(8th Cir. 2017).
25
Here, all the factors support a finding of a violation. Lipson, along with Holcomb as
note-taker, both human resources business persons, called Ortiz and Galescu into meetings in
conference rooms. During these meetings, Lipson did not explain the purpose of the meetings.
Even if she did explain the purpose of the meetings as described in her testimony, she generically
explained that Respondent was concerned about the release of employees’ personal medical 30
information to an external source. Lipson never explained, as Respondent argues in its brief, to
Ortiz or Galescu that there was a concern that California State regulations had been violated or
any other explanation for the inquiry. Respondent claims that since Galescu had not informed
Respondent who his personal representative was until after the meeting, Respondent had every
right to investigate a possible Cal/OSHA violation. However, Respondent failed to provide any 35
explanation to Galescu or Ortiz so to possibly legitimize the inquiry. During these meetings,
Lipson asked a series of questions probing into what the employees had done with the
Cal/OSHA logs and summary and to whom they had provided the information. That day,
employees including Galescu passed out leaflets which contained information precisely
concerning the safety issues at Tesla, citing to the Cal/OSHA logs and summary. Lipson knew 40
the contents of this leaflet prior to meeting with Galescu and Ortiz. Thus, the questioning would
certainly be seen to be aimed at learning Galescu and Ortiz’ protected concerted activities.
Furthermore, Galescu refused to provide any responses to Lipson’s questions, instead asking for
his representative. See Sproule Construction Co., 350 NLRB 774, 774 fn. 2 (2007) (employee
attempts to conceal union support weigh in favor of finding an interrogation unlawful). Also, as 45
discussed above, that same day Respondent violated Section 8(a)(1) when Phillips was told to
leave the Fremont facility parking lot when he was passing out these same leaflets. Based on a
JD(SF)–33–19
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totality of the circumstances, Respondent violated Section 8(a)(1) when Lipson interrogated
Galescu and Ortiz as alleged in complaint paragraph 7(q).
VIII. COMPLAINT PARAGRAPH 7(Y): RESPONDENT ON JUNE 7 VIOLATED SECTION 8(A)(1) OF
THE ACT WHEN ELON MUSK AND GABRIELLE TOLEDANO MADE STATEMENTS OF 5
FUTILITY IN SELECTING THE UNION, SOLICITED COMPLAINTS AND IMPLIEDLY
PROMISED TO REMEDY THE ISSUES, AND STATED THAT EMPLOYEES DID NOT WANT A
UNION IN THE WORKPLACE
The General Counsel argues that Respondent violated Section 8(a)(1) when Musk 10
solicited employee safety complaints and impliedly promised to fix safety issues at Tesla, when
Musk told employees that selecting the Union would be futile and that they could have a union if
Tesla did not remedy their safety concerns, and when Toledano stated that no one wanted the
Union at Tesla (GC Br. at 64-68). Respondent argues that the complaint allegations are time
barred (R Br. at 155-164). If the complaint allegations are not time barred, Respondent denies 15
the allegations as alleged (R Br. at 166–171).
Procedural Issue
On June 4, 2018, the Regional Director issued an amendment to the second amended 20
consolidated complaint and notice of hearing with paragraph 7(y) alleging that on about June 7,
Respondent, in a conference room at its Fremont facility, during a meeting held by Musk and
Toledano: (i) by Musk, solicited employee complaints about safety issues and impliedly
promised to remedy their safety complaints if they refrained from their union organization
activity; (ii) by Musk, informed its employees that it would be futile for them to select a union as 25
their bargaining representative by telling them that employees did not need a union and that
Respondent would allow them to have a union if Respondent failed in its efforts to remedy their
safety grievances; and (iii) by Toledano, restrained and coerced employees from engaging in
union organizational activity by telling them no one at Respondent’s Fremont facility wanted a
union and asking them why employees would want to pay union dues. On June 11, 2018, 30
Respondent filed a motion to dismiss complaint paragraph 7(y) based on Section 10(b) of the
Act. I denied Respondent’s motion to dismiss without prejudice on August 10, 2018. Then,
Respondent filed a special appeal to the Board of my denial of the motion to dismiss; the Board
denied Respondent’s motion on September 21, 2018. Respondent renews its motion to dismiss
paragraph 7(y). The General Counsel did not address Respondent’s timely raised 10(b) 35
argument in its post hearing brief, and thus, I rely upon the General Counsel’s argument during
the hearing as well as the opposition to the motion to dismiss paragraph 7(y) of the complaint.
As discussed further, I deny Respondent’s motion to dismiss paragraph 7(y).
Under Section 10(b) of the Act, “no complaint shall issue based upon any unfair labor 40
practice occurring more than six months prior to the filing of the charge with the Board and the
service of a copy [of the charge] upon the person against whom such charge is made.” However,
a complaint may be amended to allege conduct occurring outside the 10(b) period if the conduct
occurred within 6 months of a timely filed charge and is “closely related” to the allegations of
the charge. Fry’s Food Stores, 361 NLRB 126, 1216 (2014), citing Redd-I, Inc., 290 NLRB 45
1115 (1988). Moreover, amended charges filed outside the 6-month 10(b) period, “are deemed,
for 10(b) purposes, to relate back to the original charge.” See Apple SoCal LLC d/b/a
JD(SF)–33–19
33
Applebee’s, 367 NLRB No. 44, slip op. at 3 (2018), citing WGE Federal Credit Union, 346
NLRB 982, 983 (2006) (quoting Pankratz Forest Industries, 269 NLRB 33, 36–37 (1984), enfd.
mem. sub nom. Kelly-Goodwin Hardwood Co. v. NLRB, 762 F.2d 1018 (9th Cir. 1985)). The
Board applies a three-pong “closely related” test as set forth in Redd-I where the Board considers
(1) whether the otherwise untimely allegations involve the same legal theory as the allegations in 5
the timely charge; (2) whether the otherwise untimely allegations arise from the same factual
situation or sequence of events as the allegations in the timely charge (i.e., the allegations
involve similar conduct, usually during the same time period, and with a similar object); and (3)
whether a respondent would raise the same or similar defenses to both the otherwise untimely
and timely allegations. Alternative Energy Applications, Inc., 361 NLRB 1203, 1203 (2014). 10
Section 10(b) is an affirmative defense that is waived if it is not raised timely in a respondent’s
answer or during trial. Public Service Co., 213 NLRB 459, 461 (1993). Respondent timely
raised its 10(b) affirmative defense.

As for complaint paragraph 7(y), in first amended charges 32–CA–197020, filed April 15
17, and amended on July 28, 32-CA-197058, filed on April 17 and amended on July 28, 32–CA–
197091, dated on April 18 and amended on July 28, and 32–CA–197197, filed on April 19 and
amended on July 28, the Union alleged that within the past 6 months from February to July,
Tesla violated the Act by “intimidating and harassing employees for their Section 7 activities”
(GC Exh. 1(a), 1(c), 1(e), 1(g), 1(k), 1(m), 1(o), 1(q)). Moreover, in addition to general 20
allegations of intimidation and harassment by Respondent, amended charge 32–CA–200530,
filed on June 12 and amended on July 28, alleges that Respondent violated the Act by
“interrogating employees regarding their protected concerted activities” (GC Exh. 1(i), 1(s)).
The allegations against Musk and Toledano although not specified in the charges or amended
charges are “closely related” under Redd-I. Under the first prong, the Musk and Toledano 25
allegations would be analyzed similarly to other instances of intimidation and harassing conduct
as well as interrogation under Section 8(a)(1) of the Act. As for the second prong, again these
allegations against Musk and Toledano arose during the same union organizing campaign which
was the subject of each of these charges and amended charges. Moreover, Respondent’s
defenses would be similar such that no such conduct or statements occurred. Thus, paragraph 30
7(y) of the complaint is not time barred.
Respondent cites several Board decisions to distinguish these charges from other charges
the Board found to be untimely. However, unlike in WGE Federal Credit Union, supra, the
allegations here in complaint paragraph 7(y) would be analyzed under section 8(a)(1) of the Act 35
and involve the same union organizing campaign. See Nickles Bakery of Indiana, 296 NLRB
927, 928 (1989) (citing G.W. Galloway Co. v. NLRB, 856 F.2d 275, 280 (D.C. Cir. 1988) (a
finding of a sufficient relation between the charge and complaint in circumstances involving
“acts that are part of the same course of conduct, such as a single campaign against a union,”
NLRB v. Central Power & Light Co., 425 F.2d 1318, 1321 (5th Cir. 1970), and acts that are all 40
“part of an overall plan to resist organization,” NLRB v. Braswell Motor Freight Lines, 486 F.2d
743, 746 (7th Cir. 1973)). The Musk and Toledano allegations concern events surrounding the
Union organizing campaign, and do not concern facts separate and apart from the many
allegations set forth in the charges and amended charges. See Charter Communications, LLC,
366 NLRB No. 46, slip op at 2–5 (2018) (both timely and untimely allegations allege that 45
employer’s conduct discouraged employees from engaging in protected activities in violation of
JD(SF)–33–19
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Section 8(a)(1) as well as the events were related to the employer’s response to a union
campaign). In sum, complaint paragraph 7(y) is not time barred.
The Employees’ Health and Safety Petition
5
Prior to the June 7 meeting called by Musk, between March and June, Moran, Ortiz, and
other VOC members signed and distributed a petition regarding working conditions at
Respondent (GC Exh. 27; Tr. 704–705). The petition states,
To Tesla Management,10
As workers here at the Fremont plant, we believe in Tesla’s mission, and work
hard to make the company successful. But we also believe our company can
expand that mission to recognize the important role workers like us play in
building the company’s future. Tesla workers deserve to have a fair, safe, and 15
secure work place. As we all work hard to meet our company’s ambitious
production goals, it’s even more important that we don’t lose sight of safety. We
should come to work knowing we will return home to our families without being
injured at work. Unfortunately, all too often, this isn’t the case. Workers are
getting hurt on the job, and see work areas accidents could easily happen. In 20
addition, too many of our coworkers don’t report injuries or other safety concerns
because they are afraid of retaliation. We believe the best, most fair, and most
effective solution to safety and other concerns is for us to form our union so we
can work together with management and have a true voice when it comes to our
working conditions. 25
(GC Exh. 27).52
On June 6, Moran sent an email to Hedges and Musk regarding the employees’ desire for
health and safety at the workplace along with their desire for a “Democratic Process as we Form 30
our Union” (GC Exh. 29). Moran hand-delivered this petition to Hedges prior to sending the
June 6 email (Tr. 707).
On June 7, Hedges came to Moran’s work location and asked to speak with him in a
conference room (Tr. 713). Moran brought another employee Tony Vega (Vega) as a witness.53 35
As they walked towards the conference room at the north end of the Fremont facility, Hedges
told Moran that Musk wanted to speak to him (Tr. 714).54 When Hedges, Moran and Vega

52 In addition to the safety petition, in April or May, Ortiz signed another petition concerning
compensation (GC Exh. 26). Again, those signing the petition indicated that they were organizing to
address the issues of compensation and other working conditions in a union contract. The signed
compensation petition was delivered by VOC members to Hedges along with leaflets on or about July 21
(GC Exh. 45; Tr. 489–490). Thereafter, a picture of some of the employees who delivered the documents
to Hedges was posted on the Facebook, “A Fair Future at Tesla” public webpage.
53 Vega did not testify.
54 Musk did not testify. The General Counsel requests I make an adverse inference that Musk would
not have corroborated Toledano’s testimony regarding what was said during the June 7 meeting (GC Br.
JD(SF)–33–19
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arrived at the conference room, Musk and Toledano were waiting. Hedges then left and did not
attend the meeting.
Toledano spoke first and told Moran that they saw the health and safety petition and
wanted to hear his concerns directly (Tr. 715, 911).55 Musk then asked Moran to tell him his 5
history with Tesla. Moran responded with his history and explained the safety concerns his
coworkers and he had (Tr. 716). Vega also spoke on the subject. Moran then spoke again,
mentioning that when he had his performance assessments, he performed well but did not
received any raises. Thus, they sought a union to gain a voice at the Fremont facility (Tr. 717).
10
Moran testified that Musk stated, “[Y]ou know, you don’t really have a voice. The UAW
is a second—like two-class system where UAW is the only one that has a voice and not the
workers” (Tr. 717). Toledano then spoke acknowledging problems with the performance
system. According to Moran, Toledano then said, “[Y]ou know, the majority of workers at Tesla
don’t want a union and, you know, why do we want to pay for—why do we want to pay union 15
dues?” (Tr. 718).56 Moran responded that the employees have a right to form a union to have a
voice to improve working conditions. Vega spoke stating that they did not want to hurt Tesla but

at 22, 65). However, I decline to take an adverse inference since I do not credit Toledano’s version of
events, and instead rely upon Moran’s testimony. Vega also did not testify. Likewise, I decline to make
an adverse inference, as requested by Respondent, that Vega would not have corroborated Moran’s
testimony (R Br. at 165). Toledano’s lack of credibility, along with the subsequent email exchange
amongst Respondent’s officials as well as Moran’s credible testimony convinces me that Moran’s version
of events must be credited.
55 I cannot credit Toledano’s testimony for various reasons. Toledano testified that when she
interviewed for the chief people officer position, the subject of the Union organizing campaign never
arose (Tr. 888, 928–929). Toledano emphatically denied Musk, who interviewed her for the position,
bringing up the subject of the UAW. When she began working at Tesla on May 22, she testified that she
could not recall if the union campaign arose (Tr. 928–929). She also testified that she “became aware
over time that there was a union organizing campaign” (Tr. 888–890, 902). The union organizing
campaign was clearly known by upper management in at least February when Musk sent an email to all
employees directly responding to topics mentioned by Moran in his February 9 blog post advocating for
UAW. For Toledano to claim that the subject of union organizing to have never been mentioned to her
during the spring of 2017 when she interviewed for the position is not believable. Another reason I
cannot find Toledano credible are her inconsistent statements. Toledano testified that she “became
educated over time what a union organizing campaign was” and “was learning that there were people who
had complaints” (Tr. 890–891). Toledano testified that she probably learned that Moran, Vega, Galescu,
and Ortiz were union supporters between June 8 and 13 (Tr. 932–933). However, based on the timing of
events, by June 8, Toledano already knew that Moran was an active union supporter. But in her Board
affidavit of February 5, 2018, Toledano stated that as late as July she was not aware of employees
engaging in union activities (Tr. 899–901). Furthermore, Toledano testified that prior to this meeting she
had not reviewed the safety petition Moran provided to Hedges (Tr. 931). However, Moran credibly
testified that Toledano began the meeting by stating she had reviewed the safety petition and Musk and
she sought to discuss it with Moran. It is also unbelievable that Toledano would not have reviewed the
employees’ safety petition prior to meeting with Moran.
56 In contrast, Toledano testified that the meeting only concerned safety and safety committees, and
that the topic of unions did not come up (Tr. 910, 957). Toledano denied making any statements about
the Union during this meeting (Tr. 956). Toledano also denied that Musk made any statements about the
Union (Tr. 956–957). Again, I cannot credit Toledano. The undisputed purpose of the meeting was to
JD(SF)–33–19
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wanted to make it better. Toledano suggested that they participate in the weekly safety
committee meetings to call to attention their safety concerns (Tr. 718). Moran and Vega agreed.
Musk spoke and told them that if the safety committee meetings did not work, they would “give
you your union” (Tr. 719).57 This was the first and only meeting Moran had with Musk (Tr.
720). The meeting lasted 15 to 30 minutes (Tr. 809). Toledano testified that she thought the 5
meeting was “positive” and as a result Musk committed to weekly safety meetings (Tr. 936–
937).
The next day, June 8, Toledano and Hedges scheduled a voluntary safety meeting (Tr.
912–913; GC Exh. 55). Toledano invited safety representatives from the environmental health 10
and safety group led by Woody as well as HR representatives (Tr. 912). Production and
manufacturing employees, including Moran, Ortiz, and Galescu attended this meeting. During
this meeting, according to Toledano, Galescu was “mean’ towards her because he publicly asked
her that if the safety issues were not fixed would she be willing to resign from her job and
because he was “worked up” during this meeting (Tr. 959).15
During the morning of June 12, Hedges responded to Moran’s June 6 petition by sending
an email to all employees in manufacturing concerning safety in the workplace (GC Exh. 30).
The email’s subject line stated, “Tesla Production Update: Safety, Your Feedback, and the Real
Facts.” Hedges stated that a leaflet distributed on June 7, was to “promote the UAW, not to 20
promote safety” (GC Exh. 30).58 In this email, Hedges disputed the facts set forth in the leaflet,
and noted that the author of the June 6 letter had “up until now chosen not to participate on the
safety teams” but he was invited to have in person discussions with HR leadership and senior
members of the safety team which resulted in “a very positive and productive conversation about
all the efforts that are underway to improve safety” (GC Exh. 30). 25
Later, during the evening of June 12, Ortiz sent an email to Hedges and Musk
complaining about a safety incident involving members of middle management, which he
believed exemplified the safety problems at Tesla (GC Exh. 52). Musk then forwarded the email
to Woody. Woody replied immediately that he would work closely with Ortiz, Moran, Galescu,30
and others that had met with on June 8. Musk replied to Woody:
I’m meeting with Jose [Moran] and Jonathan [Galescu] again in the next few
days. Will ask them to join your team full time, so long as they do so in good
faith and are truly as committed as they claim to safety 35

discuss the safety petition presented by Moran and other employees. This petition as well as email to
Hedges and Musk discusses the desire of the employees to form a union which is even included in the
subject line of the email. To deny that the subject of the Union never came up during the meeting seems
completely implausible. In addition, based on circumstantial evidence, Musk knew that Moran promoted
organizing in the workplace due to his February 2017 blog post, and Musk’s subsequent email to all
employees. Hence, I do not credit Toledano’s testimony.
57 Toledano testified that she could not recall if Musk spoke about the safety committees during the
meeting (Tr. 911). Once again, Toledano’s testimony cannot be credited. The point of the meeting was
to address the employees’ safety concerns due to the employees’ petition, and based on Toledano’s
suggestion, they intended to invite Moran and others to the safety committee meetings. It does not seem
plausible that Musk would not have also discussed the safety committees.
58 The leaflet is not in the record.
JD(SF)–33–19
37
(GC Exh. 52.). Woody appears to have then forwarded Musk’s email to Toledano who
responded to Musk:
I have to say, this is a super smart idea to have these two on the safety team full 5
time. If that’s what you mean – they would join Seth’s [Woody’s] team and work
on safety in the factory full time one behalf of all associates (vs work to pull in
the UAW )? Amazing way to turn adversaries into those responsible for the
problem
10
(GC Exh. 52; Tr. 914, 919.). Toledano admitted that when she wrote adversaries, she was
referring to Moran (Tr. 918-919). Musk replied, “Exactly” (GC Exh. 52).
The next day, Toledano sought to clarify what occurred on June 7. Toledano reminded
Musk that they met with Moran and Vega, who she identified as “the nice guy who Jose brought 15
at[sic] a ‘witness’,” and that they had not met with Galescu. Toledano wrote referring to her
June 8 meeting:
All 4 are pro-union (Jose [Moran], Tony [Vega], Jonathan [Galescu] and Victor
[Ortiz]59). Jonathan [Galescu] was the most vocal/aggressive in the Thursday 20
meeting. After the meeting he wrote me the nice note I forwarded to you last
night and responded to, but in the meeting he tried to get me to ok having Union
organizers still come in. Obviously, I did not agree […].
[. . .] Tony Vega would be the best add to the Safety team, as he is the most 25
reasonable but also connected with those most active to unionize.
Clearly we could ask all 4 to join Seth’s team and go salaried. I am confirming
now with Legal that if they join the Safety team then they would be considered
part of management and not eligible to advocate for a union should they accept 30
these roles. I will confirm when I get this answer.
(GC Exh. 52; Tr. 915). Toledano admitted that she thought adding employees such as Moran to
the safety team would be a great way to involve employees in “something they think is broken”
(Tr. 915). 35
On June 14, Hedges responded directly to Moran regarding his June 6 email; Musk and
the other recipients of Moran’s June 6 email were included in Hedge’s reply (GC Exh. 29; Tr.
707). Hedges wrote that Respondent takes safety seriously as they discussed on June 6 when the
members of the VOC delivered the petition. Hedges also noted that Respondent held safety 40
meetings on June 8 with Moran and others to address these issues. Finally, Hedges ended his
email with statistics of how the UAW has been unsuccessful nationally and in the Bay Area and
noted that employees have complained to Respondent about being “bothered” at their homes as
the UAW attempts to share information (GC Exh. 29).
45

59 Toledano appears to be referring to Richard Ortiz, not Victor Ortiz (Tr. 924).
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Credibility Findings
Only Moran and Toledano testified about the June 7 meeting. Between the two
witnesses, Moran was truthful while Toledano provided contradictory and unlikely testimony. I
credit the testimony of Moran as he testified with a calm demeanor and provided straightforward, 5
unwavering testimony. During Moran’s testimony regarding the June 7 meeting with Musk and
Toledano, Moran testified authentically because although he appeared apprehensive, he provided
thorough details. Moran appeared to be listening carefully during the questioning and paused
before he responded. During cross-examination, he did not get flustered and answered the
questions to the best of his recollection. Moreover, Moran’s testimony remained consistent and 10
was uncontradicted.
In direct contrast, Toledano testified nervously. Toledano’s memory during her
testimony was poor and directly contradicted by emails she sent and responded to after the June
7 meeting with Moran. For example, Toledano testified that she could not recall if she said that 15
promoting Moran and other employees to the safety team would prevent them from advocating
for the Union (Tr. 915–916). But her emails show extensive discussion and steps Toledano took
to move four pro-union employees to management so they could no longer advocate for the
Union. Toledano, during cross-examination, often glanced at Respondent’s counsel when she
was answering questions. Toledano appeared to be straining to provide the “right” answer as she20
often appeared flustered. During cross-examination, Toledano could not recall any details of the
events surrounding the June 7 meeting which calls into question her reliability as a witness.
Toledano admitted that prior to the hearing she spoke to Hedges to refresh her memory as to
what happened in the summer of 2017 (Tr. 939–940, 1201).
25
Legal Analysis
An employer’s solicitation of employee grievances or complaints during a period of
organizing activity inherently includes an implied promise to remedy them and is unlawful
unless the employer has an established practice of soliciting and resolving grievances if the past 30
practice is not significantly altered. See, e.g., Shamrock Foods Co., 366 NLRB No. 117, slip op.
at 6 (2018); Alamo Rent-a-Car, 336 NLRB 1155, 1155 (2001). Here, Musk, the highest-ranking
official of Tesla, called a meeting with Moran the day after he delivered a safety petition to
Hedges and sent an email to Musk and Hedges expressing the desire of employees to unionize.
It is irrelevant, as argued by Respondent, that Moran “prompted” the meeting due to his June 6 35
email and petition. Musk had never met with Moran prior to this meeting and there is no
evidence that Musk met with Moran again. During this meeting, Toledano began the meeting by
announcing that their purpose was to hear safety concerns from Moran directly. After hearing
from Moran and Vega, Toledano invited the employees to the safety team meetings, and Musk
stated that if the safety committee meetings did not work, they would “give you your union” (Tr. 40
719). Based upon the credit evidence, employees may reasonably infer that Respondent via
Musk was soliciting Moran’s safety complaints for the purpose of acting favorably on them to
temper the employees push for a union which violates the Act.
In addition, Musk and Toledano’s other statements during this meeting violated Section 45
8(a)(1) of the Act. In response to Moran’s explanation for why employees sought to unionize,
Musk told Moran and Vega: “[Y]ou know, you don’t really have a voice. The UAW is a second
JD(SF)–33–19
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—like two-class system where UAW is the only one that has a voice and not the workers” (Tr.
717). Toledano also remarked, “[Y]ou know, the majority of workers at Tesla don’t want a
union and, you know, why do we want to pay for – why do we want to pay union dues?” (Tr.
718). In Wellstream Corp., 313 NLRB 698, 706 (1994), the Board held that an employer
violates Section 8(a)(1) of the Act by telling employees that attempts to secure union 5
representation would be futile where they were clearly intended to and had the effect of
informing the employees the futility of their support of the Union. Here, Musk’s statement in
response to Moran’s reasons for why the employees sought union representation was designed to
impart to Moran that even with union representation the employees would not have a voice, and
selection of a union would be useless. As for Toledano’s statement, the Board has found that 10
employer warnings of “serious harm” to employees who choose union representation are not per
se unlawful, but the warnings or statements may be unlawfully coercive if uttered in the context
of other unfair labor practices that “impart a coercive overtone”. Community Cash Stores, 238
NLRB 265, 269 (1978), citing Greensboro Hosiery Mills, 162 NLRN 1275, 1276 (1967), enf.
denied in relevant part 398 F.2d 414 (4th Cir. 1968); Reno Hilton, 319 NLRB 1154, 1155 (1995); 15
see also Westwood Health Care Center, 330 NLRB 935, 940 fn. 17 (2000) (statement is assessed
in the context in which it is made and whether it tends to coerce a reasonable employee). Also,
in the course of organizational campaigns, statements are sometimes made of a kind that may or
may not be coercive, but to derive the true import of the remarks, the circumstances in which
they are made must be viewed. Again, here, Toledano’s statement that no one wanted the union 20
was made in the context of other unfair labor practices including Musk’s solicitation during the
meeting and his statement of futility as well as the interrogation of other pro-union supporters
regarding the Cal/OSHA 300 logs. Thus, Toledano’s statement also violated the Act.
Respondent argues that if Moran’s testimony is credited, Musk’s statement, “[Y]ou 25
know, you don’t really have a voice. The UAW is a second—like two-class system where UAW
is the only one that has a voice and not the workers” is not unlawful under Section 8(c) of the
Act (R Br. at 167-170). Section 8(a)(1) of the Act is modified by Section 8(c) of the Act which
defines and implements the First Amendment in the context of labor relations. See 29 U.S.C.
§158 (c); NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Section 8(c) permits employers to 30
express “any views, arguments or opinion” concerning union representation without violating
Section 8(a)(1) if the expression “contains no threat of reprisal or force or promise of benefit.”
NLRB v. Marine World USA, 611 F.2d 1274, 1276 (9th Cir. 1980). The employer is also free to
express opinions or make predictions, reasonably based in fact, about the possible effects of
unionization on the company. NLRB v. Gissel Packing, supra at 618. When determining 35
whether a statement is permitted under Section 8(c), the statement must be considered in the
context in which it was made and in view of the totality of the employer’s conduct. NLRB v.
Marine World USA, supra.
I disagree. In my view, Musk’s statement taken in context of the impetus for the meeting 40
(the safety petition and desire to organize) along with the idea to place the employees on the
safety committee to address workplace safety concerns before they would be “give[n]” their
union is unlawful and violates Section 8(a)(1). See Reno Hilton Resorts Corp., 319 NLRB 1154,
1156 (1995). Unlike the Board’s decision in Erickson Trucking Service, Inc., 366 NLRB No.
171, slip op. at 1 (2018), where the president of the company made a disparaging statement about 45
the union’s business manager which was found to be protected by Section 8(c) as an ancillary
statement to unlawful conduct in a meeting, here the General Counsel alleged that Musk implied
JD(SF)–33–19
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a sense of futility if selecting the Union as the employees would have no voice or essentially no
representation. Musk’s statement was not a permissible explanation of the disadvantages of
union representation but was in direct response to Moran’s reason for why the employees wanted
union representation and was shortly followed by Musk’s statement that the employees would be
given a union if the safety committee meeting did not address their concerns. Taken as a whole, 5
Musk’s statement cannot be protected under Section 8(c) of the Act. In sum, Musk and
Toledano’s statements on June 7 violated Section 8(a)(1) of the Act as alleged in complaint
paragraph 7(y).
IX. COMPLAINT PARAGRAPHS 7(L), AND 7(T) THROUGH 7(V): RESPONDENT VIOLATED 10
SECTION 8(A)(1) OF THE ACT WHEN AT THE FREMONT FACILITY IT MAINTAINED AN
UNLAWFUL TEAM WEAR POLICY BUT DID NOT VIOLATE THE ACT WHEN ALLEGED TO
HAVE DISCRIMINATORILY APPLIED THE TEAM WEAR RULE IN AUGUST
The General Counsel alleges that Respondent’s team wear rule is facially unlawful and 15
was applied in a discriminatory manner numerous times in direct response to union activity in
August (GC Br. at 72–78). Respondent argues that the team wear policy is lawful under Boeing
(R Br. at 84–87). Furthermore, the supervisors alleged to have violated the Act were enforcing a
lawful rule, did not discriminate against employees wearing Union shirts, and even under a
“special circumstances” analysis, Respondent’s team wear rule is lawful (R Br. at 113-118). 20
Team Wear Rule at the Fremont Facility
During the relevant time period Respondent maintained “General Assembly
Expectations” (GC Exh. 37). This document contains a section concerning “team wear.” The 25
document provides:
Team Wear: It is mandatory that all Production Associates and Leads wear assigned team
wear.
ï‚· On occasion, team wear may be substituted by all black clothing if approved by 30
supervisor.
ï‚· Alternative clothing must be mutilation free, work appropriate and pose no safety
risks (no zippers, yoga pants, hoodies with hood up, etc.).
(GC Exh. 37).60 As explained previously, Respondent provided all GA employees team wear 35
compliant clothing when hired but prior to August, employees would often wear shirts in a
variety of colors with pictures or emblems such as sports teams and clothing brands to work in
GA without any supervisor informing them to wear only Tesla assigned team wear (Tr. 185–189,
206, 208, 238–240, 295–296, 307). Beginning in the spring of 2017 until August, production
associates in GA began wearing UAW shirts which had been passed out by employees (Tr. 296, 40
329). These shirts were all cotton in black color with the “Driving for a Fair Future at Tesla”
logo on front, and the same logo with the abbreviation “UAW” on the back (GC Exh. 25).
Employees also wore union stickers and hats to work (Tr. 204–205, 208, 210, 260).

60 This rule is the subject of complaint par. 7(l).
JD(SF)–33–19
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Mario Penera (Penera), who is the second shift production manager in GA, testified
regarding the purpose for team wear in GA.61 Penera testified that team wear relates to safety
such that Respondent knows that all production associates are wearing appropriate clothing for
the job, production associates may be quickly identified in case of an emergency, and to
eliminate or reduce the risk of vehicle mutilation which leads to increased costs (Tr. 1377–1378). 5
Penera also testified, “For me, the bigger thing with team wear is visual management of the shop.
So as we discussed, it’s a 5 million square foot facility. Somewhere around 10,000 people
walking through the plant every day. For me, that’s how I know as a manager who should be
there, who shouldn’t be there [. . . .] and it is easier to scan 30, 40 people individually to see if
their pants are going to be too abrasive, to see if their shirt has any mutilation risk on it” (Tr. 10
1375). Panera testified that if a production associate was not wearing team wear, the supervisors
and managers were to find out why the production associate was not wearing team wear and how
the issue could be resolved including corrective action (Tr. 1380–1381). Panera testified that he
approved substituting all black colored clothing for team wear when Respondent hired too many
employees at the same time and Respondent could not provide all employees in GA with team15
wear (Tr. 1382, 1411). Other supervisors and managers also permitted employees to wear
clothing other than assigned team wear. Associate Production Manager Tope Ogguniyi
(Ogguniyi) testified that she permitted associates to wear all black colored shirts instead of the
assigned team wear if the associate did not have any team wear and the team wear store was not
open (Tr. 2535). 62 She permitted associates to buy a plain black colored shirt from a local store 20
so they could continue to work (Tr. 2535, 2539). She also permitted associates to cover any
logos on a black colored shirt with mutilation protection tape which prevented the vehicles from
being scratched (Tr. 2535). Business unit leader Kyle Martin (Martin) testified that there were
occasions to give exceptions to wearing team wear such as when the team wear store did not
have the correct size or the item was not in stock (Tr. 1634, 1645–1646).25
The record reveals that in April to May, according to Martin, the end of line department,
the step after GA, noticed an increasing number of mutilations to the seats in the vehicles.
Management officials in GA met to determine what was causing these seat mutilations (Tr. 1601,
1653). They discussed potential causes of the seat mutilations including incoming materials, 30
tools, non-compliance with team wear, how the associates were in the line, and how associates
installed material (Tr. 1602). Thus, Respondent decided to audit the number of seat mutilations
per week, and to document their causes (Tr. 1603, 1607–1608; R Exh. 27).63 These audits began
in May and ended in September (Tr. 1622).64 The audit reports do not reveal any details as to
what specifically caused the seat mutilations (R Exh. 28; Tr. 1608–1610, 1641–1643).65 But 35
Martin testified that the increased scrutiny during this time period revealed that seat mutilations
were caused by tools when associates would not use a tool cover or when associates would carry

61 The parties stipulated at the hearing that Penera is a supervisor under the Act (Tr. 1413–1414).
62 Respondent admits during the relevant time period that Ogunniyi was a supervisor and agent as
defined by Sec. 2(11) and (13) of the Act, respectively.
63 The audits did not concern mutilations to any other portion of the car, including the outer body of
the car (Tr. 1642–1643).
64 Martin presented to Musk the improvements in reducing the number of seat mutilations in GA (R
Exh. 29 and 30; Tr. 1623, 1656).
65 Respondent presented a series of emails with attached audit reports (R Exh. 28, 29, 30, and 31).
However, these emails and audit reports do not indicate the relationship between seat mutilations and
noncompliance with team wear. Thus, I do not find these exhibits to be probative.
JD(SF)–33–19
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a tool in their back pocket which could damage the seat as well as rivets on pants not assigned by
Tesla (Tr. 1637–1638, 1641–1642, 1653). Martin, Panera and other supervisors admitted that the
seat mutilations were not caused by shirts, and no management witness could provide an
example of a vehicle being damaged by shirts (Tr. 1398–1399, 1641–1642, 1647–1648, 2416–
2417, 2541, 2547). Martin testified that Respondent sought to prevent mutilations as a whole 5
with the team wear rule (Tr. 1600).
In August, Respondent began enforcing the team wear rule in GA and after an initial
“pardon” for the day, issued disciplinary action including dismissal for the day for non-
compliance with the team wear rule (R Exh. 29; Tr. 1623–1625, 1653, 2527). Martin testified 10
that he asked his supervisors and associate managers to “walk the line” to check on associates’
compliance with the team wear rule (Tr. 1632–1633).66 Martin could not provide any examples
of which associates were terminated for failure to wear team wear and described “dismissal” as
stated in the audit report to refer to an associate’s dismissal for the day from work for failure to
comply with the team wear rule that day rather than termination (Tr. 1653). 15
Due to Martin’s instructions, on August 10, Ogunniyi spoke to her subordinates including
production supervisor Tim Fenelon (Fenelon) to ensure that production associates followed the
team wear rule, or the supervisors would be held accountable (Tr. 2397–2398, 2409). Ogunniyi
required her subordinates to report to her as to whether they checked their assigned production 20
associates for team wear rule compliance (Tr. 2534). Ogunniyi also walked the line where the
associates worked to ensure that they were following the team wear rule (Tr. 2528). Ogguniyi
spoke to several associates who were not wearing the assigned team wear and informed them
that they would be sent home the following shift if they did not comply with the team wear rule
(Tr. 204, 2528–2529, 2531–2532). Later that day, Martin followed up with Ogguniyi to ensure 25
that she walked the line to check on employees’ team wear rule compliance (Tr. 2551). Martin
asked Ogguniyi to send him a list of associates who did not follow the team wear rules that day
(Tr. 2551; GC Exh. 73).67 After Ogunniyi sent her list to Martin, he then asked her how many
associates wore the UAW shirt that day (GC Exh. 73). Ogguniyi noted in response to Martin’s
question that only production associate Jayson Henry (Henry) wore a UAW shirt that day (Tr. 30
2554). Martin testified that he asked which associates wore a union shirt because, “It gave me a
pulse for the shop. It lets me know where my supervisors are at, with the development of their
associates. If I have an associate on my line that feels that they have to seek some type of
outside counsel or representation, it means that my supervisors aren’t doing what they need to do
to engage the associates” (Tr. 1635, 1644–1645, 1657–1659).35

66 Martin testified that he asked supervisors to “walk the line” prior to August, but I do not credit his
testimony as it is uncorroborated and contradicted by the credible testimony of Ogunniyi and Fenelon.
Multiple witnesses, including Ogunniyi, testified that enforcement of the team wear rule began in August.
67 In contrast, Martin testified that Ogguniyi initiated the email with him after he asked her to ensure
that associates followed the team wear rule (Tr. 1635–1636). I do not credit Martin’s testimony on this
point. Ogunniyi’s email to Martin contains the subject line: team wear follow-up (GC Exh. 73). In this
email, Ogunniyi informed Martin to whom she spoke with that day regarding team wear rule compliance.
The subject line of this email seems to suggest that Martin asked Ogunniyi for the names of individuals
not following the team wear rule which contradicts Martin’s testimony.
JD(SF)–33–19
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Henry testified that he wore a UAW shirt on August 10 after he passed out shirts to
employees prior to the start of his shift that day (Tr. 181, 183, 187, 194). That day, an unknown
male supervisor, identified by his red colored Tesla shirt, told Henry he could not wear the union
shirt again or he would be sent home (Tr. 184).68 Henry requested to see Respondent’s dress
code (Tr. 184). Ogunniyi then approached Henry and gave him a copy of “General Assembly 5
Expectations” which included the team wear rule (Tr. 184, 2531–2532). Ogunniyi testified that
Henry was the third associate she spoke to that day that did not have on proper team wear;
Ogunniyi denied Henry’s accusation that she only spoke to him due to the UAW shirt he wore
(Tr. 2531).69
10
Also, on August 10, production associate Sean Jones (Jones) wore a UAW shirt to work
(GC Exh. 34). Fenelon pulled Jones aside after the morning meeting.70 Fenelon told Jones that
his Union shirt was not appropriate, and he would need to change his shirt or would be sent
home (Tr. 293–294, 2405, 2414). Jones asked him why he needed to change his shirt, and
Fenelon stated that his shirt was not a Tesla approved shirt, and not compliant with the team 15
wear rule. Fenelon also told Jones that his Union shirt had an emblem on it and emblems would
not be accepted on shirts anymore (Tr. 293–294). Fenelon gave Jones money for a team wear
shirt from the team wear store, and Jones responded, “This is really some bullshit over a shirt”
(Tr. 304). Jones then changed his shirt (Tr. 294, 2405).71
20
Later that day, Jones spoke to Ogunniyi telling her that Fenelon threatened to send him
home due to his wearing a Union shirt to work. Ogunniyi told Jones that the policies have
changed. Jones responded, “When? That’s bullshit. I’ve always wore[n] different shirts” (Tr.
294). Ogunniyi stated that the policy changed where no shirts with emblems will be allowed as
they can scratch a car (Tr. 294–295).7225
Later in August, Ogunniyi and Fenelon held a meeting regarding the team wear rule with
25 to 30 employees who worked that shift on final line in GA (Tr. 297). Ogunniyi informed
employees that no one could be out of “uniform” and everyone must wear assigned team wear or
be sent home (Tr. 298). Production associate Tim Cotton (Cotton) testified that Ogunniyi told 30
the employees they could not wear anything that did not say Tesla or was not approved by Tesla
(Tr. 330).73 Jones and Cotton testified that they continued to see employees wear shirts that did

68 This allegation appears to refer to complaint par. 7(t)(i).
69 This allegation appears to refer to complaint par. 7(t)(ii).
70 Due to Ogunniyi’s instructions, Fenelon testified that at the start of every shift he would review the
clothes of the associates he supervised to ensure that they had on the “right team wear” as well as
personal protective equipment (PPE) (Tr. 2400–2401, 2410, 2416). Fenelon testified that when he saw
someone not complying with the team wear rule, he would let them know that they needed to wear the
appropriate team wear (Tr. 2401). Fenelon testified that to comply with the team wear rules, the associate
would need to go to the team wear store to get the appropriate clothing, go to their car to get the
appropriate clothing, or would need to clock out of work, get the appropriate clothing and return to work
(Tr. 2401). Fenelon provided several examples from the summer of 2017 when he told associates to
change into assigned team wear (Tr. 2402–2407). For one employee, Fenelon permitted the employee to
place a piece of black felt tape over the white stripe of his black colored Nike shirt (Tr. 2407).
71 This allegation appears to refer to complaint par. 7(u)(i).
72 This allegation appears to refer to complaint par. 7(u)(ii).
73 This allegation appears to refer to complaint par. 7(v).
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not comply with the team wear rule, and to their knowledge, no supervisor or manager asked
those employees to change their shirt (Tr. 298, 330–331).
Credibility Findings
5
Overall, the General Counsel and Respondent’s witnesses did not significantly differ in
what occurred during the summer of 2017. Of course, with the number of witnesses who
testified about team wear, there will be inconsistencies in their testimony, so I relied upon their
collective testimony when deciding this statement of facts. Beginning with the General
Counsel’s witnesses, I found Henry, Jones and Cotton to be candid witnesses on direct 10
examination. I also credit their encounters with Ogunniyi, Fenelon, and an unnamed supervisor
about their union shirts. However, I cannot credit their testimony that supervisors continued to
permit employees to not comply with team wear rules after enforcing the rule in August. I
cannot credit their testimony because unlike other portions of their testimony, they did not
provide any details of what they observed and how they knew the supervisors turned a blind eye 15
to the noncompliance. For example, Henry provided significant details during his testimony but
on this issue of noncompliance with the team wear rule after August he provided a vague,
unspecified account as to what he observed where it was unclear whether these employees he
mentioned even worked in GA. In addition, Henry testified in detail about an employee who
wore a white shirt to work which supervisors permitted but these details are missing from his20
Board affidavit which makes this portion of his testimony unreliable.
As for Respondent’s witnesses, Panera testified comfortably when asked about the
manufacturing process, but his credibility was undermined on cross-examination when he
became defensive when responding to questions about team wear. Martin also provided credible 25
testimony which was detailed as to the events of the summer of 2017, but I cannot credit portions
of his testimony as specified above. Of all the witnesses presented by both parties on these
allegations, I found Ogunniyi and Fenelon to be the most trustworthy and honest. These two
supervisors followed orders from their superiors. I credit Ogunniyi’s testimony that she spoke to
all employees who were not compliant with the team wear rule and did not target only the 30
employees wearing union shirts. Fenelon also provided specific details as to whom he spoke,
and even provided examples of how he attempted to ensure that employees could be compliant
with the team wear rule.
Legal Analysis35
In the absence of special circumstances, the Board has held that employees, particularly
during an organizing campaign, have a Section 7 right to wear insignia at work referring to
unions or other matters pertaining to working conditions for the purpose of mutual aid or
protection. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945) (employees have a right to 40
wear union insignia at work); Goodyear Tire & Rubber Co., 357 NLRB 337, 341 (2011);
Midstate Telephone Corp., 262 NLRB 1291, 1292 (1982), enf. denied 706 F.2d 401 (2d Cir.
1983); Pathmark Stores, Inc., 342 NLRB 378, 379 (2004); Albis Plastics, 335 NLRB 923, 924
(2001). However, an employer may prohibit the wearing of union insignia by employees if the
employer proves special circumstances. Pathmark Stores, supra; W San Diego, 348 NLRB 372, 45
372 (2006). Special circumstances include “when their [union insignia] display may jeopardize
employee safety, damage machinery or products, exacerbate employee dissension, or
JD(SF)–33–19
45
unreasonably interfere with a public image that the employer has established, or when necessary
to maintain decorum and discipline among employees.” Komatsu America Corp., 342 NLRB
649, 650 (2004). Any rule that limits employees’ Section 7 right to wear union insignia in the
workplace must be narrowly tailored to the special circumstances to justify the rule. W San
Diego, supra at 373–374.5
Respondent argues that the Board’s analysis of workplace rules in Boeing applies to the
team wear rule, but I disagree. Instead Board law governing the right of employees to wear
union insignia in the workplace has been analyzed by the Board according to the principles set
forth in Republic Aviation v. NLRB, supra, and its progeny. Even if the Boeing analysis is 10
applicable here, I find that Respondent’s rule is overbroad and its business justification (which
are the same arguments as its argument for special circumstances according to Republic
Aviation) does not override employee’s Section 7 rights to engage in union activity. Respondent
also argues unpersuasively that the Board has “implicitly” permitted employers to promulgate
and enforce a nondiscriminatory uniform rule (R Br. at 115). Simply because Respondent’s rule 15
does not explicitly prohibit the wearing of union insignia does not mean that if the rule is
enforced equally, the rule is permitted; the rule still disallows employees to wear union insignia
on their clothing in GA. However, in both cases cited by Respondent, the Board did not make
such a determination as exceptions were not filed on those allegations.
20
Respondent’s team wear rule only permits employees in GA to wear team wear or plain
black colored clothing, thereby, precluding employees from wearing clothing with union
insignia. Thus, Respondent’s team wear rule is unlawful. Respondent may rebut this
presumption by presenting special circumstances which permits the rule albeit “narrowly
tailored.” Respondent argues that its special circumstances for banning union shirts in GA is due 25
to preventing mutilations to the painted vehicles and to maintain visual management; these are
the same arguments Respondent raises to support its business justification if the Boeing analysis
were to apply. Respondent must set forth more than “conjecture” to find special circumstances.
Medco Health Solutions of Las Vegas, Inc., 364 NLRB No. 115 (2016). Respondent claims that
it requires assigned team wear in GA due to vehicle mutilations. But Respondent’s argument 30
makes little sense considering the credited evidence. Here, Respondent discovered an increase in
seat mutilations in April or May, and thus, Respondent began an audit in GA to determine what
was the cause or causes. Not one of Respondent’s managers could affirmatively point to the
union shirts as the cause of the problems. The documentary evidence also does not support such
an argument since the audit results do not specify what aspect of team wear non-compliance 35
caused the seat mutilations. See Boch Imports, Inc., 362 NLRB 706, 707–708 (2015) (no
evidence that union pins worn by employees damaged vehicles as asserted). The only clothing
issue that was mentioned during the hearing as a potential source of problems was rivets on
pants, not the UAW shirt. The justification for enforcing the previous lax team wear rule was the
seat mutilations, not with general vehicle mutilations including mutilations to the paint on the 40
vehicles. As for visual maintenance, Respondent’s production associates wear black colored
shirts while team leaders and managers wear red colored shirts. In GA, the black colored Tesla
assigned shirts are not substantially different from the black colored UAW shirts or from the
plain black colored shirts that the team wear rule allows. Respondent also argues that because
employees were able to continue to wear union stickers at the workplace, Tesla did not interfere 45
with their Section 7 rights. However, this argument is a red herring. Thus, Respondent’s
JD(SF)–33–19
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maintenance of the team wear rule is unlawful, and violates Section 8(a)(1) as alleged in
complaint paragraph 7(l).
However, I do not find that Respondent disparately enforced the team wear rule as
alleged. See, e.g., Shelby Memorial Home, 305 NLRB 910, 919 (1991), enfd. 1 F.3d 550, 565 5
(7th Cir. 1993) (nursing home’s selective enforcement of its rules restricting pins or badges
against union insignia, but not other insignia was unlawful). I do not credit the testimony of the
General Counsel’s witnesses that they observed Ogunniyi, Fenelon and an unnamed supervisor
only enforcing the team wear rule with those who wore the UAW shirts. Ogunniyi’s email of
August 10 shows that she spoke to many employees that day, and only one person had on a 10
UAW shirt. While the question of why Martin asked who wore the UAW shirt is suspicious, this
suspicion does not address whether the supervisors enforced the rule disparately. As stated
previously, Ogunniyi and Fenelon’s testimonies were clear—they sought to enforce the team
wear rule as directed by their superiors. In contrast, the General Counsel’s witnesses only
provided general, unpersuasive responses as to whether they saw other employees wear 15
noncompliant team wear after the rule was enforced in August; these witnesses could not testify
with certainty as to whether these employees were asked to comply with team wear. Thus, the
General Counsel has not sustained his burden of proof, and I dismiss complaint paragraphs 7(t),
(u), and (v).
20
X. COMPLAINT PARAGRAPH 7(W): RESPONDENT DID NOT VIOLATE SECTION 8(A)(1) OF
THE ACT WHEN SUPERVISOR DAVE TESTON, AT THE SPARKS FACILITY, IMPLIEDLY
THREATENED AN EMPLOYEE FOR WEARING A UNION HAT
The General Counsel alleges that Supervisor Dave Teston (Teston) threatened employee 25
Will Locklear (Locklear) with discipline for wearing a hat with union logo on it (GC Br. at 77–
78). Respondent argues that Teston’s comment to Locklear is privileged under Section 8(c) of
the Act (R Br at 121–123).
No witnesses testified at the hearing about this complaint allegation. Locklear did not 30
testify at the hearing despite being issued a subpoena duces tecum by the General Counsel. The
General Counsel, however, did not seek enforcement of the subpoena after I denied the General
Counsel’s request for video testimony from Locklear.
The parties submitted a written stipulation into the record that Teston would testify as 35
follows, in relevant part (Jt. Exh. 3):
Locklear was one of Teston’s training coordinators from about December 2016 until at
least February 5, 2018. Prior to that, Locklear was a production associate in Respondent’s Sparks
facility. Teston was Locklear’s supervisor from June until November. Teston did not40
work with Locklear during his time at Respondent’s Fremont facility. Teston only knew
Locklear from work and did not have any association with Locklear outside of work.
Teston knew that Locklear supported the Union because Locklear, at a date uncertain,
informed Teston of his Union support. Teston recalls that during the summer or fall of 2017 45
Locklear wore a hat with a union logo on it. Teston also remembers that during that time period
JD(SF)–33–19
47
Locklear had a sticker on his laptop that said UAW as well as a union insignia on his safety
glasses.
On approximately September 8, Teston privately spoke to Locklear about the union hat
that Locklear wore to work that day. Teston asked Locklear if he thought wearing the union hat 5
was professional due to his training coordinator role. Teston asked this question on his own, no
one told him to ask this question, and Teston chose to ask this question based on his own
experience with the military and uniformity. Teston then told Locklear that he did not want
Locklear to answer the question and that Locklear should think about it. This conversation
occurred near Teston’s desk on the second floor of Respondent’s Sparks facility. It is unknown 10
how many times Teston asked Locklear this question during their single conversation, but it was
at least once. Locklear did not respond to Teston.
Shortly after the conversation Teston had with Locklear about his union hat, Teston
checked with higher level officials within Respondent. Teston wanted to make sure that the hat 15
with the Union logo was professional, since that is what Teston had said to Locklear the day
before. Thus, Teston sent an email to Respondent about this issue (GC Exh. 72). In response to
Teston’s email, Senior Employment Counsel Jaime Bodiford (Bodiford) and Associate Manager
of HR Steven Schwarzer (Schwarzer) told Teston that what an employee wears is their business
and theirs alone if it’s not offensive. The next day, Teston told Locklear that if he wanted to wear 20
the union hat, he was welcome to wear it. Locklear was not wearing the union hat the next day
when Teston talked to him, and Teston only remembers Locklear saying, “okay.” However,
Teston saw Locklear wearing the union hat after this conversation.
Legal Analysis25
Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the exercise of their statutory right to engage in,
or restrain from engaging in concerted activity. “It is well settled that the test of interference,
restraint, and coercion under Section 8(a)(1) of the Act does not turn on the employer’s motive 30
or whether the coercion succeeded or failed.” American Tissue Corp., 336 NLRB 435, 441
(2001) (citing NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946)). In making its
determination, the Board considers the total context in which the challenged conduct occurs and
is justified in viewing the issue from the standpoint of its impact on employees. Id. (citing NLRB
v. E.I. du Pont & Co., 750 F.2d 525, 528 (6th Cir. 1984)). However, as discussed previously, 35
Section 8(a)(1) is modified by Section 8(c) of the Act, which defines and implements the first
amendment right of free speech in the context of labor relations.
I find, based on the totality of the circumstances, that Teston’s statement to Locklear was
not unlawful. Teston, who was Locklear’s supervisor, asked Locklear a rhetorical question about 40
his union hat. Teston did not ask Locklear to remove the hat. The following day Teston went
back to Locklear to inform him that he was welcome to wear the hat. I do not find these
circumstances to be coercive but rather an opinion under Section 8(c). See Cadillac of
Naperville, Inc., 368 NLRB No. 3, slip op. at 4 (2019) (citing NLRB v. Gissel, supra, where Sec.
8(c) gives employers the right to express their views about unionization or a particular union if45
those communications do not threaten reprisals or promise benefits). Based upon this limited
JD(SF)–33–19
48
scenario, I do not find that Respondent violated the Act as alleged and dismiss complaint
paragraph 7(w).
XI. COMPLAINT PARAGRAPH 7(R): RESPONDENT DID NOT VIOLATE SECTION 8(A)(1) OF
THE ACT WHEN SUPERVISOR ARNOLD CAMAT IMPLIEDLY THREATENED AN EMPLOYEE 5
FOR WEARING A UNION HAT
The General Counsel argues that Camat’s statement to Vasquez is an unlawful threat
under the Act (GC Br. at 78). Respondent argues that Camat did not threaten Vasquez (R Br. at
96–97).10
Former employee Eric Vasquez (Vasquez), who in the spring of 2017 worked in quality
control in the stamping department, testified that he wore a union shirt to work almost every day
and wore a union sticker on his hat daily (Tr. 368). In addition, to wearing a union shirt and
sticker on his hat, Vasquez participated in passing out leaflets inside and outside the Fremont 15
facility (Tr. 369–370). Vasquez testified that he was never asked to change his shirt by
management (Tr. 369). Vasquez also testified that 20 to 30 employees in the stamping
department wore union shirts and/or union stickers on any given day.
Vasquez testified that in the spring of 2017, one morning after his shift ended, as he stood 20
at the timeclock, a supervisor from BIW named “Arnold” told him to watch out with his union
sticker which he had on his hat because “they’re watching people with that sticker on” and
“make sure you are on point with everything” (GC Exh. 35; Tr. 353–356).
Based on the record, it appears that Vasquez was referring to Arnold Camat (Camat), 25
who was a production supervisor for BIW and who supervised Vasquez from July 2016 to March
(Tr. 2115–2116).74 Camat testified that the only conversations he had with Vasquez concerned
his tardiness, and these conversation occurred away from the production line and time clock (Tr.
2116, 2120–2121). After issuing Vasquez a written warning for tardiness, Respondent’s
management team decided in the spring of 2017 to transfer Vasquez to another department where 30
the start time was later in the morning (Tr. 2117–2118). Camat denied discussing the Union with
Vasquez, and could not recall Vasquez wearing a union shirt, hat or sticker (Tr. 2118, 2120–
2121, 2123). Camat denied making the statement that Vasquez attributed to him (Tr. 2118).
Credibility Findings35
I do not credit Vasquez’ testimony. Vasquez provided clear details of what “Arnold”
allegedly said to him one morning in the spring of 2017. However, on cross-examination,
Vasquez could not answer even basic questions such as the name of his last supervisor or even
“Arnold’s” last name despite Arnold having been his supervisor for 9 months. Vasquez stated, 40
“I don’t remember” numerous times. He could not recall the date of the conversation with
Arnold which is believable but could not even place the time period of the conversation. On
direct examination, Vasquez testified the conversation occurred in the spring of 2017 but on
cross-examination waffled his testimony such that the conversation could have occurred in

74 At the hearing, the parties stipulated that Camat is a supervisor within Sec. 2(11) of the Act (Tr.
2118–2119).
JD(SF)–33–19
49
September (Tr. 361). Vasquez provided unreliable testimony, and I decline to credit any portion
of it. In contrast, Camat testified with sincerity as to his recollection of conversations with
Vasquez. Camat answered questions completely, and his demeanor remained calm throughout
his testimony.
5
Legal Analysis
The allegation at complaint paragraph 7(r) is dismissed since I do not credit Vasquez’
testimony that Camat made the comment attributed to him.
10
XII. COMPLAINT PARAGRAPH 7(S): RESPONDENT VIOLATED SECTION 8(A)(1) OF THE ACT
IN AUGUST WHEN SUPERVISOR HOMER HUNT TOLD EMPLOYEES IT WOULD BE FUTILE
TO SELECT THE UNION AS THEIR BARGAINING REPRESENTATIVE
The General Counsel argues that supervisor Homer Hunt (Hunt) made a statement of 15
futility to welder Michael Williams (Williams) which violates Section 8(a)(1) of the Act (GC Br.
at 78–80). Respondent argues that the allegation against Hunt is time barred (R Br. at 100-103).
Respondent also argues that even if the complaint allegation is not time barred, Hunt did not
make a statement of futility to Williams (R Br. at 99–100).
20
Procedural Issue
Respondent alleges that complaint paragraph 7(s) is barred by Section 10(b) of the Act.
On March 30, 2018, the Regional Director issued a third order consolidating cases, second
amended consolidated complaint and notice of hearing with paragraph 7(s) alleging that in 25
August, Hunt, at the Fremont facility, informed employees that it would be futile for them to
select the Union as their bargaining representative. At the hearing, Respondent moved to dismiss
the allegation at complaint paragraph 7(s) against Hunt as there is no “valid operative charge”
related to Hunt (Tr. 224). Respondent, in its answer, alleged generically that the complaint
contained allegations that are beyond the applicable statute of limitations, and thus the 30
allegations are barred. The General Counsel opposed such a motion and I reserved my ruling on
the motion to this decision (Tr. 225–226). Now Respondent renews its motion to dismiss
paragraph 7(s) in its post–hearing brief. The General Counsel did not address Respondent’s
timely raised Section 10(b) argument in its post-hearing brief, and thus, I rely upon the General
Counsel’s argument during the hearing. For the reasons that follow, I deny Respondent’s motion 35
to dismiss paragraph 7(s).
Beginning with complaint paragraph 7(s), in charge 32–CA–208614, filed on
October 25, amended on March 13, 2018, the Union alleged that within the past 6 months, Tesla
had violated the Act by “making a statement of futility regarding employee support for the 40
Union” and “by these and other acts, Tesla, Inc. has violated Section 8(a)(1), (3), and (4) of the
National Labor Relations Act (GC Exh. 1(z), 1(hh)). The original charge included various
allegations of intimidation and harassment from June to October as well as other acts for
engaging in Section 7 right. Although the Hunt allegation was not specified in the original
charge, I find that it was specified in the amended charge, thus I find that Redd-I test is satisfied. 45
As for the first prong, the Hunt allegation of selecting the Union as futile would be analyzed
similarly under Section 8(a)(1) of the Act. As for the second prong, the allegation against Hunt
JD(SF)–33–19
50
arose during the same union organizing campaign which was the subject of the original charge.
This charge also encompassed the wearing of union apparel as well as the discharge of
employees. The Hunt allegation falls squarely during this time period and cannot be
distinguished. Finally, as for the third prong, Respondent’s defenses would be similar such that
no such conduct or statements occurred. Thus, paragraph 7(s) of the complaint is not time-5
barred.
Respondent cites several Board decisions to distinguish these charges from other charges
the Board found to be untimely. However, unlike in WGE Federal Credit Union, supra, the
allegations here in complaint paragraphs 7(s) would be analyzed under section 8(a)(1) of the Act 10
and involve the same union organizing campaign. See Nickles Bakery of Indiana, supra. The
Hunt allegation concerns the union organizing campaign and does not concern facts separate and
apart from the many allegations set forth in the charges and amended charges. See Charter
Communications, LLC, supra. In sum, complaint paragraphs 7(s) is not time barred.
15
Statement of Futility
In August, Williams had a conversation with his former supervisor, Hunt, who was
supervisor of quality control (Tr. 237). Williams testified that he was at a specific welding
station when he saw Homer and motioned for him to come over to Williams’ workstation to 20
discuss the lead position for which he had applied and was not chosen. Hunt stated that the
selection was out of his hands. Williams then stated that this situation was a reason to have the
Union at Tesla so that the correct individuals get chosen for the proper positions. Hunt then told
Williams, “The Union’s never getting in here. This is Tesla” (Tr. 238).75 Hunt denied that the
Union ever came up during this conversation but also could not remember the conversation 25
exactly (Tr. 2015–2016, 2112). Hunt testified that the conversation with Williams was like a
“yelling contest” with Williams using profanity (Tr. 2103–2016). However, Hunt did not
discipline Williams as a result of the conversation (Tr. 2106).
Credibility Findings30
I credit Williams testimony as he testified in a forthright manner, providing significant
details, and I saw no indication of bias as Respondent alleges. In contrast, Hunt exhibited a great
deal of animosity during his testimony regarding the conversation with Williams. In addition,
Hunt could not recall the details of his conversation with Williams but does recall profanity and 35
angry outbursts by Williams. However, Hunt never disciplined Williams if the conversation
occurred as alleged which undermines Hunt’s credibility. Logically, such an outburst if it
occurred would have resulted in at least a referral for an investigation or proposed disciplinary
action, neither of which took place. Thus, I rely upon Williams’ version of events.
40

75 In his affidavit, Williams states that when Hunt and he spoke about his failure to be selected for the
lead position, Hunt and he were “messing around” compared to his hearing testimony where he stated
Hunt and he were having a professional conversation (Tr. 254). I do not find the change in tenor of the
conversation from a casual to a professional conversation to affect whether the statement was made by
Hunt or not.
JD(SF)–33–19
51
Legal Analysis
Employer statements to the effect that the employer will never be a union shop are
unlawful because they would reasonably give employees the impression that it would be futile
for them to support the union, thus interfering with, restraining, and coercing them in the 5
exercise of their right to select a union to represent them, in violation of Section 8(a)(1). Venture
Industries, 330 NLRB 1133, 1133 (2000); Wellstream Corp., supra; Maxi City Deli, 282 NLRB
742, 745 (1987). In response to a conversation Williams was having with Hunt regarding his
failure to be promoted, Williams stated that his failure to be promoted was a reason for the
employees to have union representation. In response, Hunt told Williams that there would never 10
be a union at Tesla. Hunt’s statement gave the impression to Williams that it would be futile to
select the Union which violated Section 8(a)(1) of the Act as alleged at complaint paragraph 7(s).
XIII. COMPLAINT PARAGRAPH 8: RESPONDENT VIOLATED SECTION 8(A)(3) AND (1) OF THE
ACT BY TERMINATING RICHARD ORTIZ ON OCTOBER 18 AND BY DISCIPLINING JOSE 15
MORAN ON OCTOBER 19, AND VIOLATED SECTION 8(A)(1) OF THE ACT BY
INTERROGATING EMPLOYEES AND ENFORCING AN UNLAWFUL RULE IN SEPTEMBER
AND OCTOBER
The General Counsel argues that Respondent unlawfully disciplined Moran and 20
terminated Ortiz, two well-known union activists, for their protected concerted activity when
they criticized anti-union employees on a private Facebook page (GC Br. 80-81). During this
investigation, the General Counsel alleges that Respondent’s investigator unlawfully interrogated
the employees in September and October and promulgated or disparately enforced a rule
regarding the Workday program (GC Br. at 81–86). Moreover, the General Counsel argues that 25
the proper analysis of the discipline and termination is NLRB v. Burnup & Sims, 379 U.S. 21
(1964) (GC Br. at 86–91). The General Counsel also argues that Moran and Ortiz’ conduct did
not lose the protection of the Act under Atlantic Steel Co., 245 NLRB 814 (1979) (GC Br. at 92–
94). Respondent, on the other hand, argues that Moran and Ortiz were not engaged in concerted
activity for the purpose of mutual aid or protection (R Br. at 137–139). Respondent argues that 30
Moran and Ortiz lost the protection of the Act by improperly using Workday and lying during
the investigation, respectively (R Br. at 139–143). Finally, Respondent argues that the proper
analysis of the discipline and termination is Wright Line, 251 NLRB 1083 (1980), enfd. on other
grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983) (R Br. at 143–150). 35
California State Legislature
On about August 29, Ortiz, along with VOC members Galescu, Sanchez, and Phillips as
well as union organizers, participated in meetings with the State of California legislature in 40
Sacramento, California, to encourage the legislators to add in language to the electric vehicle
rebate program that Respondent needed to be “fair and responsible” and ensure safety in the
workplace (Tr. 491–492, 495). Also, during this time these employees posted a photo with one
of the California State Senators with whom they had met on the public Facebook webpage, “A
Fair Future at Tesla” (GC Exh. 46; Tr. 492–493). 45
JD(SF)–33–19
52
After the meetings with VOC members, the California State Assembly held public
hearings on September 13 and 14, to discuss the Budget Act of 2017, Assembly Bill (AB) 109
and 134 (Tr. 495, 2506; CP Exh. 9 and 10). Specifically, AB 134, committee on budget, section
1, provision 2(c)(1) states, “The State Air Resources Board shall work with the Labor and
Workforce Development Agency to develop procedures for certifying manufacturers of vehicles 5
included in the Clean Vehicle Rebate Project as being fair and responsible in the treatment of
their workers. It is the intent of the Legislature that beginning in 2018–2019 fiscal year, the
Labor Secretary shall first certify manufacturers as fair and responsible in the treatment of their
workers before their vehicles are included in any rebate program funded with state funds.”
During these public hearings, three employees for Tesla, maintenance technician Shaun Ives 10
(Ives), lead equipment maintenance technician Travis Pratt (Pratt), and GA Production
Supervisor Jean Osbual (Osbual) testified in opposition to AB 109 and 134. Of relevance,
during these hearings, Pratt, who identified himself by name, testified that he started at Tesla as a
maintenance technician, level 2, and made $130,000 gross income.
15
On approximately September 14, Ortiz, who did not attend the hearings, contacted
political organizer “Hanna” who lobbied on behalf of the Union. Hanna told Ortiz that Tesla
employees attended the hearings and spoke on behalf of Tesla. Hanna sent Ortiz a video link of
the employees’ public comments at the hearings (Tr. 496). The Tesla employees who attended
the hearings were speaking against union-sponsored AB 109 and 134. 20
Because Ortiz could not open the video link, he sent the link to Moran via text message to
see if he could open the link (Tr. 498; GC Exh. 43). Ortiz wrote to Moran, “Hanna is
sensing[sic] me a video of the suck asses Tesla been taking ti[sic] Sacramento” (GC Exh. 43).
Moran responded by asking Ortiz to send it to him. Ortiz replied, “I cant[sic] view it with my 25
phone so let me know who they are I want to walk up to them AND say see you in Sacramento
suck ass” (GC Exh. 43 (emphasis in original)). Moran testified that he watched the video, noted
the individuals’ names, and looked up the individuals in Workday via the application on his
personal phone to determine if they were actual Tesla employees (Tr. 723, 794).
30
To look up individuals in Workday, an employee must log into the Workday program,
and use the search box to type in a name. Moran testified that he had previously searched for
employees on Workday to compare his seniority with others (Tr. 724). Moran testified that he
previously sent screenshots of employees’ Workday profiles to Ortiz (Tr. 724–725). Moran
testified that no one from Respondent discussed policies or limitations on using Workday 35
(Tr. 672). Moreover, Moran testified that no one had ever told him that he could not take
screenshots of Workday profiles and photos (Tr. 672).76

76 Multiple witnesses testified similarly. Phillips, who is a current employee, testified that no one had
ever placed limitations on his ability to use Workday including limitations to use only for official
business purposes even after October (Tr. 389–390). Galescu testified that no supervisor, manager or HR
employee ever told him that Workday could only be used for “legitimate and official business purposes”
even after October (Tr. 833). Ortiz testified that Respondent briefly discussed Workday during his new
employee orientation but did not place any limitations or restrictions on its use (Tr. 442–443). I credit
these employees’ testimonies as to how Workday may be used, and that no limitations or restrictions were
ever placed on its use.
JD(SF)–33–19
53
Private Facebook page, “Tesla Employees for UAW Representation”
Moran sent a text to Ortiz of the Workday profile screenshot photos of employees Ives
and Pratt, and supervisor Osbual (Tr. 505–507). Other employees, who Ortiz could not recall,
also sent him the Workday profile screenshots of these employees (Tr. 507). That same day, 5
Ortiz posted one side-by-side screenshot of Pratt’s photo and job title, and Ives’ photo with no
name or job title on the private Facebook webpage, “Tesla Employees for UAW Representation”
(Tr. 506, 626–627). Above the photos of Pratt and Ives, Ortiz posted the following comment on
the private Facebook webpage:
10
These guys been in Sacramento saying we are lying about how things are at Tesla
Management has been taking them one of them sez[sic] he made $130000 last
year
How many of you make . . .
overtime 15
This 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
(GC Exh. 28.) Ortiz, quickly thereafter, removed the post from Facebook because Pratt sent him
a message via Facebook stating that name calling “wasn’t a good way to start” (Tr. 515–516.)77 20
Pratt wrote, “Say what you like about me behind closed doors . . . I made what I did last year
almost entirely as a level two maintenance technician, which is where several of your colleagues
from production now find themselves. I wish you luck but know there will be a lot of us on the
otherside[sic]. Starting with name calling may not be the approach you want to take” (GC Exh.
80).25
The Investigation of Pratt’s Complaint
Pratt then sent a text message to Hedges complaining about Ortiz’ Facebook post; Pratt
and Hedges also spoke on the phone (Tr. 1180, 1182, 1212–1213; GC Exh. 28). Pratt sent 30
Hedges a screenshot of Ortiz’ post on Facebook which included Pratt and Ives’ Workday profile
photos. The screenshot of the Facebook post includes a picture of a sleeping child and the
following message, “Travis Pratt: Copy thanks” (GC Exh. 28). Hedges could not explain what
this writing meant and did not appear to ask Pratt (Tr. 1255–1256). Pratt wrote the following text
message under the Facebook screenshot he sent Hedges, 35
Hedges responded, “Wow. This is on Facebook?” Pratt responded, “Yea lol [laugh out loud] 40
I’m pretty sure it’s on their fair future at Tesla thing” (GC Exh. 28). It appears that Pratt’s text
message does not end at this point, but the remainder of his message cannot be seen in the

77 Since Ortiz deleted this Facebook post soon after posting it, the post no longer appears on the
private Facebook webpage and Ortiz did not retain a copy of it (Tr. 516). Based upon documentary
evidence, it was likely Pratt, not Ives as Ortiz testified, who sent the instant message to Ortiz via
Facebook, complaining about the post.
Looks like we got under some
people's skin.
JD(SF)–33–19
54
exhibit (GC Exh. 28). Hedges testified that it is likely Pratt and he continued to text one another
but he only sent the one-page screenshot to Copher and Bodiford and did not keep the other text
messages since he had a new Tesla-owned phone and his computer had been stolen (Tr. 1219).
Hedges testified that during their phone conversation, Pratt did not specify on which 5
Facebook page his photo appeared (Tr. 1214, 1217).78 Hedges testified, “[Pratt] said he’d
received this from a friend. He’s not—he said he’s not on social media very much, but he was
surprised to see himself and [Ives] on this chat forum or whatever, and that he was kind of afraid
that would happen when he went up to Sacramento, and he, you know, he felt kind of targeted by
that. And I said well, I will, you know, pass this on to employee relations, and they might reach 10
out to you to talk about, you know, how this happened and kind of look into it. And he said that
was fine” (Tr. 1183–1184, 1213–1214). When asked what Pratt’s concern was, Hedges testified
that Pratt was concerned that his picture and Tesla information had been placed on Facebook (Tr.
1225). Hedges testified that Pratt had a legitimate concern as Pratt “felt targeted by another
employee” (Tr. 1227–1229). Hedges then testified that Pratt’s complaint warranted an 15
investigation because Pratt “felt harassed and targeted by another employee. And so it’s up to
me when I get a complaint like that to make sure that it’s fully investigated” (Tr. 1231, 1235–
1236). Hedges testified that no one shared with him what, if anything, happened to this
Facebook post (Tr. 1233).
20
As background, prior to the September 13 and 14 public hearings, Hedges invited Pratt to
speak to the California State Assembly legislators after asking him what his employment
experience had been at Respondent.79 Hedges’ request to Pratt appears to have been directed by
Toledano who asked Hedges to find employees to go to Sacramento (Tr. 1212, 1230). Hedges
wanted a “positive” employee experience to be provided to State legislators due to AB 109 and 25
134, sponsored by the Union (Tr. 1181–1182). Thus, Pratt and Ives, while on worktime, went to
Sacramento with Hedges (Tr. 1246–1247).80 Hedges knew that pro-union employees were also
supporting the bill, and Hedges sought to “offer a different perspective” (Tr. 1211).
After receiving Pratt’s complaint, Hedges spoke for approximately 5 minutes to Ricky 30
Gecewich (Gecewich), an employee relations partner who conducts investigations, to give him a
“heads up” about Pratt’s complaint as Hedges had already “forwarded” the complaint to Copher

78 Pratt did not testify.
79 According to Hedges, Pratt told him that his experience at Tesla had been good, he had
opportunities for promotion and Tesla had “done some good things” (Tr. 1181). Hedges testified that he
asked Pratt to speak about his experience at Tesla “because [Pratt] had a positive experience and there
were several others giving, you know, like a negative type of narrative. And I felt it would be useful to
have, you know, somebody from the other side” (Tr. 1181).
80 I do not find Hedges to be a credible witness. Hedges testified that he was not aware that Pratt
testified in a public hearing before the California State Assembly, providing his name, job title and salary
(Tr. 1225–1226). Hedges’ testimony is simply unbelievable. Hedges directly asked Pratt to go to the
California State Assembly to speak on behalf of Tesla, and Hedges testimony seems to indicate that he
went to Sacramento with them. Even if Hedges did not go to Sacramento, considering the importance of
this matter to Tesla and the need to ensure “positive” employees testify on behalf of Tesla, it seems
unlikely that Hedges would not have followed up with these employees to learn what happened, and to
listen to their public testimony. Thus, Hedges’ testimony cannot be believed.
JD(SF)–33–19
55
(Tr. 1184, 1800–1801).81 During this conversation, Hedges showed Gecewich the screenshot
Pratt sent him and explained why Pratt and Ives were in Sacramento (Tr. 1235, 1801, 1894–
1897).82
Gecewich’s job responsibilities included investigating concerns brought by employees, 5
supervisors, business leaders or HR partners, conducting witness interviews, gathering
information related to employee concerns, meeting with anyone who is accused of violating
Respondent’s policies, drafting documentation and providing recommendations to business
leaders on his findings (Tr. 1788, 1790). Gecewich testified that he conducted over 100
investigations while employed by Respondent (Tr. 1789). Gecewich explained that when taking 10
information about a complaint, he seeks to understand why a complaint was made (Tr. 1799).
Gecewich testified that the concerns would be taken seriously, but then the team would
determine whether the concerns would be investigated (Tr. 1790). Gecewich explained that he
may not interview all witnesses, but will take typed notes, which may be edited later for
clarification, during the investigation and during interviews (Tr. 1791–1792). When an 15
investigation is completed, Gecewich creates a report of findings as well as recommendations
(such as no discipline, written warning, and terminations); the decision on whether to follow the
recommendations lays with the responsible business leaders who may or may not be an
employee’s direct supervisor (Tr. 1792–1794, 1797). Gecewich testified that when
recommendations of termination occur, the employee relations and investigations team will 20
speak to the director level or above (Tr. 1797). When an investigation is completed, Gecewich
would inform the complaining person that the investigation is completed (Tr. 1797–1798).

Gecewich began his investigation by calling Pratt on September 19 (Tr. 1085). Gecewich
spoke to Pratt about the text messages and screenshot that Hedges showed him (Tr. 1805). 25
Gecewich testified that Pratt “allud[ed] to something about Sacramento”; Gecewich did not ask
about the details (Tr. 1805–1806, 1897).83 During this conversation, Pratt told Gecewich that he
sent the Facebook post to Hedges and had received the information from employee Bryan
Kostich (Kostich) (Tr. 1086). Pratt told Gecewich that the Facebook post was from a Facebook
page called, “Fair Future at Tesla” (Tr. 1086). Gecewich testified that Pratt told him that he 30
thought the information in the Facebook post was inappropriate as it included how much money
employees made at Respondent, and Pratt thought that he was being singled out (Tr. 1807–
1808). Pratt complained that he felt uncomfortable with Ortiz speculating how much he made as

81 Respondent admits that Gecewich was a supervisor as defined by Sec. 2(11) of the Act and an
agent as defined by Sec. 2(13) of the Act. Gecewich no longer works for Respondent (Tr. 1781).
82 Hedges claimed that he did not ask Gecewich to investigate Pratt’s complaint and that Gecewich or
Copher made the decision whether a matter should be investigated (Tr. 1209). However, I do not credit
Hedges’ claims of neutrality as to whether Gecewich should investigate Pratt’s complaint or not. The
circumstances of this situation point to the conclusion that Hedges did not simply refer an employee
complaint to the employee relations and investigations team but took additional steps to call the issue to
Gecewich’s attention as he knew Gecewich would “look into it” (Tr. 1209). In addition, Hedges testified
that Pratt’s complaint of harassment and being targeted warranted an investigation. Moreover, Gecewich
testified that Hedges approached him with the request to investigate (Tr. 1893–1894).
83 Pratt did not only refer to something in Sacramento but instead, based on Gecewich’s
contemporaneous notes, Pratt told Gecewich that he was contacted by Hedges to go to Sacramento (GC
Exh. 63).
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well as the posting of his name and picture (Tr. 1807–1808). Pratt also told Gecewich he thought
Ortiz did not act appropriately because he made a comment about people sucking up at Tesla (Tr.
1808). Gecewich never asked Pratt what he meant by his comment to Hedges: “Looks like we
got under some people’s skin” with a smiling face and eyes and rosy cheeks emoji (Tr. 1868–
1869). After this conversation, Pratt forwarded to Gecewich a screenshot of the direct message 5
he sent to Ortiz after he saw the Facebook post (Tr. 1808, 1911–1912; GC Exh. 80). Gecewich
testified that Pratt told him that Ortiz then took the Facebook post down (Tr. 1912). Gecewich
never asked Pratt about his usage of Workday or whether Pratt has shared his information such
as job title and salary publicly (Tr. 1808–1809).84
10
The day after he spoke to Pratt, on September 20, Gecewich phoned Kostich (Tr. 1814–
1815, 1911). During this conversation, Kostich told Gecewich about the Facebook page, “Jose
Organizer” (Tr. 1815). Kostich told Gecewich that “Jose Organizer” reached out to him to join a
Facebook group called, “Tesla Employees for Union Access” (Tr. 1816). Gecewich did not
investigate these Facebook pages Kostich mentioned to him, including the Facebook page where 15
Ortiz posted about Pratt (Tr. 1816). Gecewich also did not investigate the privacy settings on
these Facebook pages (Tr. 1816). Gecewich testified that based on his conversation with
Kostich, he realized that this incident could have been related to the Union (Tr. 1816–1817,
1820). Gecewich testified that he then gained knowledge of Ortiz’ involvement with the Union
(Tr. 1817).85 Gecewich never asked Kostich about his Workday usage (Tr. 1817). 20

84 Gecewich is not a reliable witness as his contemporaneous notes during the investigation and
hearing testimony differ in key details. Gecewich testified that Pratt expressed concern about Workday
during his meeting with him, but he did not put this information in his notes (GC Exh. 63; Tr. 2181-2182,
2192–2193). Based upon Gecewich’s notes, the first time the issue of Workday arose during this
investigation is when Kostich mentioned the use of Workday and that Kostich wanted someone to
investigate this matter (GC Exh. 64).
85 I cannot credit Gecewich’s testimony regarding his knowledge as to when he knew of union
activity by Ortiz. Gecewich testified that he knew about unionization at the Fremont facility but denied
knowing that there was a Facebook page, or a petition signed by employees (Tr. 1807). However, on July
20, HR partner Tanaka forwarded an email to Gecewich concerning an employee petition from several
employees to Hedges, Toledano, and Musk (GC Exh. 70). This email with the subject line: “We Want to
Know,” asked several questions about compensation at Tesla, and stated that they sought to organize to
address these issues. Ortiz and other employees signed this email. The petitions attached to the email
also included the logo, “Driving a Fair Future at Tesla” as well as the related website. Gecewich could
not recall reviewing this email or why Tanaka forwarded this email to him (Tr. 1868, 1914, 2241). Also
at the hearing, after inconsistent testimony, Gecewich testified that before his meeting to discuss the
findings of his investigation and his recommendations, he knew that Ortiz was involved with the Union
but in Gecewich’s January 8, 2018, affidavit to the Board, Gecewich handwrote that he had no knowledge
of Ortiz’ union activities at the time of that meeting (Tr. 1857–1858). Based upon my overall credibility
determinations for Gecewich, I do not credit his claim that he did not know at least a few months prior to
the Pratt complaint that employees Moran and Ortiz had been attempting to organize the workplace.
Gecewich likely would have reviewed Tanaka’s email in the course of his job duties. Also, as for Moran,
Gecewich testified that he had seen Moran’s name in his blog post prior to Gecewich’s start with Tesla in
May (Tr. 1838).
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September 21: Gecewich’s Interrogation of Ortiz
The following day, on September 21, Gecewich contacted Ortiz via email asking him to
attend a meeting with him that day (Tr. 516–517, 629). Ortiz wore his union shirt and pin at the
meeting (Tr. 529; GC Exh. 25). Gecewich began the meeting by asking Ortiz to keep the 5
contents of the meeting confidential (Tr. 517).86 Gecewich showed Ortiz a redacted version of
the Facebook screenshot (Tr. 518, 1820; GC Exh. 28).87 Ortiz immediately told Gecewich that
he posted the message and apologized for what he posted. Ortiz told Gecewich that he received
a message from “the gentleman” and removed the post “as quick as I could” (Tr. 518).88
10
Gecewich then told Ortiz that he wanted to ask him questions about Workday (Tr. 518–
519). Ortiz told Gecewich he tried to use Workday but sometimes had trouble such as with his
self-review. Ortiz testified that he told Gecewich that Workday “is like a Facebook for Tesla;
the people inside the building” (Tr. 520). Gecewich asked Ortiz how he received the photos that
he posted on Facebook (Tr. 521). Ortiz did not tell Gecewich the names from whom he received 15
the screenshots and told him that he did not know where the photos came from, but that he
received the photos via text message (Tr. 1823). Gecewich asked Ortiz several times from
whom he received the photos. During this meeting, Ortiz gave Gecewich his phone to look
through his text messages, but Ortiz had a new phone which he had replaced that same day
(Tr. 525, 620).89 The meeting ended with a reminder to keep the meeting confidential. 20
On September 22, Gecewich sought to review the data logs of Workday even though
Respondent does not routinely monitor employees’ usage of Workday and does not have access
to employees’ sign-in and sign-out information in Workday; Respondent needs to request
specific information from Workday as Workday is a third-party software program (Tr. 1827–
1828). Working with Tesla employee Raj Nanda (Nanda), the day after he interviewed Ortiz, 25
Gecewich requested that Workday provide a list of anyone who accessed the Workday
pages/profiles of Pratt and Ives between September 10 and 16 (Tr. 1828–1829, 1831; GC Exh.
81).

86 Gecewich took notes of his meeting with Ortiz (GC Exh. 65). These notes include a reference to
shirts Ortiz mentioned to Gecewich that he had passed out in the parking lot (Tr. 1912–1913). However,
Gecewich claimed at the hearing that he did not know that Ortiz was passing out union shirts (Tr. 1913).
Again, Gecewich is not credible since his contemporaneous notes are inconsistent with his hearing
testimony. Meanwhile, I cannot credit Ortiz’ testimony that Gecewich twice mentioned the
Confidentiality Agreement. Ortiz testified that Gecewich mentioned the Confidentiality Agreement and
that he asked if he was fired (Tr. 521), but Gecewich’s notes and testimony only reflect that he expected
the meeting to remain confidential.
87 The redacted version excludes the text messages between Pratt and Hedges as well as the picture of
a child and a comment of “thanks” (Tr. 1821). Gecewich also testified he showed Ortiz an enlarged
version of this Facebook post (Tr. 2252–2254).
88 Ortiz is referring to the direct message Pratt sent him.
89 Respondent attempts to attack Ortiz’ credibility because he had a new phone that day and no longer
had his old phone. Certainly, if Ortiz’ credibility could be punctured at other points in his testimony, then
his action of replacing his phone that same day could raise some eyebrows. However, in this instance, I
see nothing nefarious about Ortiz’ actions as he did not have advance notice that Gecewich planned to
question him that day about the Workday profiles he posted on Facebook. In fact, Respondent received
this text message string regardless of the phone replacement, and it is unclear what more Respondent
would want (Tr. 620–622).
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On September 28, because he had still not received the requested information, Gecewich
asked Nanda for an update on his request, and stated in his email, “Please be aware this case is
being closely monitored by Gaby and I am providing updates as they come in” (GC Exh. 81).
Still not receiving the information, on October 4, Gecewich elevated his request to Nanda’s 5
supervisor and informed him that “[. . .] we should update Gaby and team shortly” (GC Exh.
81).90
On October 6, Nanda provided a list of individuals who accessed the Workday profiles of
Pratt and Ives (GC Exh. 81). The list revealed that Moran and Krista Washington (Washington), 10
who was not identified during the hearing, on September 14 viewed Pratt and Ives’ Workday
profile pages (GC Exh. 81). Moran viewed Pratt and Ives’ Workday profile pages two minutes
apart. Gecewich testified that after receiving the logs, he looked at Moran’s Workday profile
photo and recognized his photo from the small bubble on Ortiz’ Facebook post of the screenshots
(Tr. 2273). Still Gecewich sought more information and wanted to know which pages Moran 15
visited in September and sought to compare the data which “will explain his usage much better”
(GC Exh. 81). Thereafter, on October 24, after the investigation concluded and the discipline
and termination had been issued, Nanda sent Gecewich the Workday logs for Moran (Tr. 1829;
GC Exh. 79, 81).
20
October 12: Gecewich Interrogates Moran
On October 12, Gecewich met with Moran in a conference room (Tr. 727). Gecewich
introduced himself and stated that the meeting was to remain confidential (Tr. 729). Gecewich
stated that he was investigating a concern with Workday. Gecewich then asked Moran a series 25
of questions about Workday (Tr. 728). Gecewich asked Moran if he thought Workday was an
internal or external platform, and Moran responded that he thought it was an internal platform.
Gecewich asked Moran for what purposes he used Workday, and Moran stated that he used it to
review his performance, update his contact information, and sign documents electronically (Tr.
730). Gecewich asked Moran if he used Workday for any other purposes. Moran told him that 30
he used Workday to search for his co-workers to compare his seniority and pay (Tr. 730–731,
1834). Gecewich then told Moran that he knew that Moran took the screenshots of the
employees’ Workday profiles (Tr. 731). Gecewich asked why Moran took the screenshots, and
Moran told Gecewich that he wanted to find out if the individuals were actual employees of
Respondent (Tr. 732, 1835, 1899, 1945).91 Gecewich never showed Moran the actual 35
screenshots he received (Tr. 1836-1837, 1942–1943).

90 Gecewich was not a credible witness. Gecewich incredibly testified that he only provided
Toledano with updates once a month, and that despite his claims to Nanda, Toledano was not monitoring
this investigation (Tr. 1873–1874, 1907, 2265, 2267). Gecewich claimed that he wrote untrue statements
in his email to Nanda simply to get the information sooner (Tr. 1876, 2267). If Gecewich were to be
believed that Toledano only received monthly updates, then Gecewich’s investigatory tactics raises a red
flag as he does not appear to be trustworthy which again diminishes his credibility.
91 Gecewich’s notes again contradict his testimony (GC Exh. 67). Gecewich testified that Moran told
him that he used Workday at the request of a UAW representative to verify whether the individuals were
employees (Tr. 1836). However, in his notes, Gecewich states that a representative from UAW told
JD(SF)–33–19
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Gecewich asked Moran to look for the screenshots on his phone and on Facebook (Tr.
1837–1838). Moran could not find the screenshots on Facebook which had been removed by
Ortiz after Pratt complained directly to Ortiz (Tr. 733). Thereafter, Gecewich asked Moran to
look on his phone for the screenshots. After some time, Moran was able to find the screenshots
in his text message communications with Ortiz (Tr. 733–734). Gecewich asked for a copy of the 5
text messages to “prove, you know, my case that I didn’t do anything wrong” (Tr. 735).
Gecewich asked Moran if he did anything else with the screenshots, and Moran told him that he
sent the pictures to Ortiz. Gecewich mentioned that the pictures “got out somewhere in public”
(Tr. 736). Gecewich thanked Moran for his honesty (Tr. 799). The meeting ended after 40
minutes to an hour (Tr. 796).10
October 12: Gecewich Interrogates Ortiz
After meeting with Moran, Gecewich met with Ortiz again on October 12; Ortiz again
wore his union shirt (Tr. 528).92 During this meeting, which lasted longer than the first, 15
Gecewich asked for the meeting to remain confidential. Gecewich started the meeting by asking
about the Workday profile screenshots on the Facebook post. Gecewich and Ortiz then had a
conversation about where the screenshots came from. Ortiz eventually admitted that it must
have been Moran who sent the screenshots to him via text message but that he had received these
screenshots from others as well (Tr. 530, 1842). Apparently prior to his meeting with Gecewich, 20
Moran spoke to Ortiz about his meeting with Gecewich. During this meeting with Gecewich,
Ortiz expressed concern about being fired and was worried in the prior meeting that he would be
fired. Ortiz also spoke about his nature not to bring others into his own problems, and that he
was protecting other employees including Moran (Tr. 1842–1844). By the end of this meeting,
Ortiz had told Gecewich from where the photos had come (Tr. 1915).25
Decision to Terminate Ortiz for Lying and to Issue Moran a Warning for Workday Misuse
After these meetings with Ortiz and Moran, Gecewich drafted a report of his
investigation with recommended actions (Tr. 1846, 1850). Gecewich testified that he based his 30
recommendations on looking at similar cases as well as the “unique facts of this case” (Tr. 1851).
Gecewich testified that he considered Workday profile photos and any Workday screenshots to
be sensitive; Gecewich’s characterization of the Workday photos or screenshots is based on his
own belief that Workday is an internal data system (Tr. 1935). During his investigation,
Gecewich claimed he never sought to learn what happened in Sacramento, went to the Facebook 35
page to look at the page and never found out who were the members of the Facebook group (Tr.
1823, 1835). After drafting the report, Gecewich showed it to Tesla’s in-house counsel (Tr.
1849). Gecewich’s recommendation for termination of Ortiz and warning for Moran were

Moran that Tesla employees were in Sacramento, and Moran decided to look up the employees to see if
they were actual employees. Moran did tell Gecewich that he would look at Workday accounts of other
employees when requested by a UAW representative.
92 As for the second meeting with Ortiz, I cannot credit the entirety of Ortiz or Gecewich’s testimony
as to what happened. Gecewich’s contemporaneous notes provide a much clearer picture as to what
happened (GC Exh. 67). No matter which version I choose to credit, all versions demonstrate that
Gecewich asked Ortiz several questions about the Workday screenshots and why he did not tell the truth
during the first meeting. Thus, I rely on a compilation of the testimonies of Ortiz and Gecewich along
with Gecewich’s notes.
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“aligned with legal” (Tr. 1930). But a prior version of his report shows that Gecewich along
with in-house counsel edited the investigatory report which was originally created on October 12
(GC Exh. 85). In a prior version of this report, Gecewich wrote, “This time frame corresponds to
when these three Tesla employees went to Sacramento, California to speak with State
legislatures about their experiences at Tesla” (GC Exh. 86). The sentence was removed from the 5
final version of the report, but directly contradicts Gecewich’s repeated testimony that he did not
know anything about the employees’ testimony in Sacramento on behalf of Tesla or what
prompted the Facebook posts (Tr. 2185–2187). Gecewich attempted to correct his prior
testimony to claim that he did know the purpose which was shared with him during the
investigation but Gecewich also claimed to not have investigated the underlying events to the 10
Facebook post (Tr. 2187).
Gecewich’s response as to what he was investigating varied throughout his testimony. At
one-point Gecewich testified that he was investigating why the Workday screenshots were
released (Tr. 1898). Then he testified that he was investigating the release of the Workday 15
photos on a public Facebook page (Tr. 1902). And the final report states, “This investigation was
initiated to determine if proprietary business systems were accessed for non-business purposes”
(CP Exh. 4). However, the investigation began based on Pratt’s complaint that the release of his
photo and information was inappropriate and made him feel singled out, harassed or cyberbullied
(Tr. 1903–1904). Gecewich claimed that he never investigated the Facebook post, and admitted 20
he never sought to understand why Pratt made the complaint (Tr. 1939). Gecewich admitted that
he knew “parts” of the Facebook posts “could have been protected” so he focused on the
Workday profile photos (Tr. 1939–1940). Gecewich repeatedly testified that the posting of the
Workday photos externally was concerning as this was Tesla’s information (Tr. 1904). But the
Workday photo is the same photo on the employees’ badges and Gecewich testified that 25
employees can take a photo of their own badge and post it elsewhere as there is no proprietary
interest in the photo (Tr. 1927, 1957).
Hedges testified that he did not speak to Gecewich again until after he was finished with
the investigation when Gecewich told him his findings and recommendations (Tr. 1186, 1188–30
1189, 1236–1237, 1907). Gecewich told Hedges that Ortiz lied during the investigation because
Ortiz knew from whom he received the “information” and thus Gecewich was recommending
termination. As for Moran, Gecewich testified that he was forthcoming and honest but used
Workday improperly and he was recommending a warning be issued to Moran (Tr. 1187, 1237,
1915).93 Hedges agreed with Gecewich even though he was not the decision maker (Tr. 1221). 35
Hedges could not recall if he ever informed Toledano about Pratt’s complaint (Tr. 1220).
Hedges testified he spoke with Gecewich, Copher, and Bodiford (Tr. 1221). The record is
unclear as to whether Hedges or Gecewich decided that the decision maker in Ortiz’ case should
be Stephan Graminger (Graminger), the director for body manufacturing which included BIW,94
since Hedges believed that this situation needed “more attention” and a decision maker at a 40
“higher level to make an objective decision” rather than the BIW department manager Ron

93 Gecewich could not recall whether he asked HR partners to document Moran’s warning in his
Workday file or keep it in an email (Tr. 1793–1794).
94 Graminger no longer works for Respondent but during the relevant time period was a supervisor as
defined by Sec. 2(11) of the Act (Tr. 1293).
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Martinez (Martinez) (Tr. 1187–1188, 1907–1908). Hedges testified that he suggested someone
higher than Martinez make the decision because Ortiz and Moran were involved with the Union,
and thus there would be more scrutiny with the decision and needed someone who was
comfortable making the decision and farther removed from the day-to-day operations (Tr. 1190,
1239).95 5
On October 17 Gecewich met with Graminger along with Shtawney McIntosh
(McIntosh), who was an HR business partner for BIW,96 and Martinez in a conference room near
BIW to discuss Ortiz (Tr. 1268, 1848; R Exh. 15).97 Prior to the meeting, Graminger did not
know what the meeting was about (Tr. 1292). Gecewich presented the findings of his 10
investigation and spoke about Ortiz (Tr. 1288, 1852, 2205–2206).98 Graminger testified that he
reviewed the entire report during the meeting (Tr. 1300–1301). The version of the report
purportedly shown to Graminger notes that employee relations received a concern that Ortiz
posted screenshots of Ives’ and Pratt’s Workday “landing page” which included pictures, full
names and business titles (CP Exh. 4). As for the summary and analysis of findings section, the 15
report states, “On Sept. 16th, 2017, ER [employee relations] received a concern from Travis Pratt
that Richard Ortiz posted screenshots of his and Shaun’s Workday profile to a Facebook group.
Travis was concerned based on the content of the message and because he understood Workday
was an internal Tesla HR system intended for work purposes and not for broader distribution on
social media” (CP Exh. 4). The report states that Moran was asked by a UAW representative to 20
verify that the employees were Tesla employees (CP Exh. 4). Furthermore, Gecewich wrote that
Moran volunteered to provide his text messages to Gecewich, and that Moran said Ortiz would
be “dishonest” if he didn’t say from where the screenshots came (CP Exh. 4). Gecewich further
wrote, “After learning Jose shared the screenshots with Richard, ER spoke with Richard again”
(CP Exh. 4). 25
Graminger testified that Gecewich stated that Ortiz and Moran “leaked some internal
information out of Workday including some telephone number and personal information and
posted it on Facebook” (Tr. 1288). Gecewich never mentioned to Graminger that Pratt and Ives
had gone to Sacramento to testify on behalf of Tesla (Tr. 2201). At the meeting, Graminger 30
asked to see Ortiz’ post on Facebook, and Gecewich showed Graminger a screenshot of the
Facebook post (Tr. 1289, 1303).99 Graminger testified that he was “quite sure” he asked

95 Hedges admitted that he knew Moran was an active Union organizer and had brought safety
concerns to Musk and Hedges’ attention (Tr. 1205–1206). Hedges also admitted that Ortiz was an active
Union organizer and requested Cal/OSHA 300 logs and summaries (Tr. 1206). Hedges also admitted that
he was familiar with the Union’s Facebook page “A Fair Future at Tesla” and had visited the webpage at
least 10 to 20 times (Tr. 1207).
96 Even though McIntosh testified at the hearing, no party asked her any questions about this meeting.
97 Gecewich and Graminger’s testimonies differ significantly on what occurred during this meeting.
Graminger, who appeared to be a nervous witness, was more reliable than Gecewich as to what occurred.
Graminger appeared to be earnest in explaining what he learned during the meeting, and his thought
process as to how to decide this matter. Based upon my overall findings that Gecewich was not a credible
witness, I rely upon Graminger’s testimony although there were some inconsistencies within his
testimony as well.
98 The record is unclear as to which version of the report Graminger reviewed.
99 Gecewich could not recall showing Graminger the Facebook post (Tr. 2198). Again, I credit
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Gecewich if similarly situated cases had been treated in the same way, and Gecewich responded
that they had but did not provide any specific details of cases (Tr. 1293–1294, 1301–1302).100
At this meeting, Gecewich recommended that Ortiz be terminated for lying during the
investigation. Gecewich testified that any mitigating circumstances would be raised by the HR
partner or business leader and that he told Graminger their role during the meeting (Tr. 1929). 5
Gecewich testified that Martinez made some “good comments” about Ortiz but those comments
did not mitigate the recommended termination (Tr. 1930). In fact, Respondent conducted one
performance review of Ortiz for the time period from January 1 to June 30 (GC Exh. 12). Ortiz
received an overall rating of 3—consistently strong. Respondent also conducted a 2017
supplemental performance review for Ortiz from July 1, 2016 to June 30 where Ortiz received 10
the same rating of 3—consistently strong (GC Exh. 13). As a result, on October 8, Respondent
awarded Ortiz a performance award (GC Exh. 14).
Gecewich asked Graminger if he agreed with his recommendation, and because
Graminger was new to Tesla and felt that this situation was a “sensitive case” he wanted to talk 15
to Hochholdinger to get confirmation if there have been similar cases in the past to be certain he
fully considered everything. The meeting ended without Graminger deciding (Tr. 1290, 1919).
Graminger went to Hochholdinger and told him that he had just left an investigation
meeting “involving Richard Ortiz, a member of the union” (Tr. 1290, 1310).101 Graminger asked 20
Hochholdinger if he was aware of the matter, but Hochholdinger was not aware. Then
Graminger asked whether there have been similar cases where someone lying during an
investigation would be terminated. Hochholdinger responded that there have been similar
instances and that person would be terminated according to Respondent’s personnel policy (Tr.
1290–1291). Graminger did not know which specific Tesla policies Ortiz violated nor did he 25
review any policies (Tr. 1298–1299). Thereafter, Graminger informed McIntosh, Martinez and
Gecewich via email to proceed as discussed and that Hochholdinger was aware of the decision to
terminate Ortiz (Tr. 1290–1291; R Exh. 15).

Graminger’s testimony.
100 In contrast, Gecewich testified that during the meeting, he provided Graminger a comparator case
where a vice president of SolarCity had been terminated after an investigation where he lied about his use
of a company vehicle, drugs and alcohol found in that vehicle and an improper relationship with another
employee (Tr. 1853). Gecewich testified that this situation was the only comparator case used as the vice
president was terminated only for lying during the investigation, not for the alleged acts (Tr. 1853–1854,
1920).
101 Graminger testified that Ortiz’ union activity was not discussed during the meeting and the Union
was not brought up during the meeting but, Graminger knew that Ortiz was “a member of the union” and
that the matter had such sensitivity that he needed another opinion (Tr. 1291–1292, 1301, 1855).
Graminger testified that Ortiz’ name was familiar because he had looked on the website, “A Fair Future
for Tesla” and the Facebook page (Tr. 1291, 1298, 1313). Graminger knew before this meeting with
Gecewich that Ortiz was active in the Union. I do not credit Graminger’s testimony that Ortiz’ Union
activity was not discussed during the meeting. It is obvious that all the attendees of the meeting knew
that Ortiz was active with the Union, and it seems implausible that no one mentioned his union activity
during this meeting especially considering Graminger admitted this was a “sensitive case.”
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Graminger made the decision to terminate Ortiz on October 17 (Tr. 1265). Prior to
making the decision to terminate Ortiz, Graminger had never spoken to or dealt with Ortiz (Tr.
1265–1266, 1290).
October 18: Ortiz is Terminated5
On October 18, Gecewich, McIntosh, and Ortiz met in the north admin building; Ortiz
wore his Union shirt (Tr. 532, 2064–2065).102 McIntosh testified that Gecewich began the
meeting by informing Ortiz that the investigation he had conducted was closed (Tr. 2066).
According to McIntosh, Gecewich told Ortiz that he was found to be dishonest during the 10
process as he was not forthcoming about some images or where the images came from, and
recommended termination (Tr. 2066, 2068). Ortiz was asked if he had any questions which he
did not have, and McIntosh explained the termination process (Tr. 2066). McIntosh stated that
the meeting lasted 5 to 10 minutes (Tr. 2066). McIntosh denied that the Union was mentioned
during the meeting but knew that Ortiz was active in the Union as it was “common knowledge”15
since he wore Union shirts (Tr. 2067–2068).103
Toledano testified that she learned of Ortiz’ termination after it occurred from Copher’s
status reports to her (Tr. 904). Toledano denied receiving status reports during the investigation
of Ortiz, did not monitor the investigation of Ortiz, and was not involved in the investigation in 20
any way (Tr. 905–909). Toledano also testified that Gecewich verbally informed her of the
results of the investigation (Tr. 910, 933). Toledano could not recall what Gecewich told her.
Toledano testified, generally, that she learned Ortiz lied during the investigation, but she did not
know what the lie concerned and Copher’s report did not provide details (Tr. 934). Again, I
cannot credit Toledano’s testimony. It is incredulous to believe that Toledano was unaware that 25
a prominent union supporter was terminated or that he was even being investigated. Based on
what is more likely than not, Toledano knew about the investigation as well as the reasons for
Ortiz’ termination.
October 19: Moran is Disciplined for Violating a Workday Rule30
On October 19, Gecewich and Emee Cruz (Cruz), an HR partner, met with Moran.
Gecewich thanked Moran for his honesty during the first meeting, and he would only be given a
warning regarding his use of Workday (Tr. 738, 801). Gecewich told Moran that he could use
Workday only for business purposes, not personal use (Tr. 2308). Thereafter, Gecewich sent 35
Moran an email to follow up on their meeting that day (GC Exh. 42, 82; Tr. 2308). Gecewich
wrote, “As part of our investigation we found that you used an internal system, Workday, for
personal purposes and without proper business justification. You are reminded that you should
only access internal systems, including Workday, for legitimate and official business purposes”

102 McIntosh testified credibly albeit a bit reluctantly with her responses.
103 Ortiz, in his October 26, affidavit taken soon after he was terminated, did not state that Gecewich
was at his termination meeting, and that McIntosh told him was being terminated for violating the
Confidentiality Agreement (Tr. 644). I cannot credit any of Ortiz’ testimony as to what occurred during
the termination meeting. McIntosh testified in a clear, concise manner, and I rely upon her testimony to
establish what occurred during this meeting. Ortiz again testified about the Confidentiality Agreement
but based on logical inferences, this subject was not mentioned.
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(GC Exh. 42, 82). Gecewich testified that associate manager Brian Cunningham (Cunningham)
agreed with the recommendation for a verbal coaching with written follow up to be issued to
Moran (Tr. 2307).104
On October 19, Gecewich sent an email to Pratt, informing him that the investigation of 5
the Facebook post and improper access/use of Workday had been completed (GC Exh. 83).
Gecewich informed Pratt that while he could not tell him the specific outcome in this matter,
Respondent took his concerns seriously and “aligned our action with similar cases across Tesla”
(GC Exh. 83). However, Gecewich testified that as of January 2018, this case was the only
scenario involving Workday use of employees (Tr. 1879). Furthermore, Respondent has no 10
written policy requiring employees to be truthful during an investigation or any policy requiring
employees only use Workday for legitimate and official business purpose (Tr. 1879).
Credibility Findings
15
Of all the witnesses who testified about these allegations, I credit Moran’s version of
events completely. Not only did Moran testify with few inconsistencies but Gecewich’s
contemporaneous notes also supported his testimony. Next, although I credited some portions of
Ortiz’ testimony, there are many portions of his testimony that I could not credit. For example,
Ortiz testified that Gecewich asked him about the Confidentiality Agreement and asked him if he 20
knew what a lie was. I cannot credit his testimony as the Confidentiality Agreement was not
been mentioned by any other witness.
As for Respondent’s witnesses, I cannot rely upon Hedges or Gecewich. I have set forth
numerous examples within the statement of facts which explains why I cannot credit their 25
testimony. As a Section 611(c) witness, Gecewich testified steadily but nervously. Under cross-
examination, Gecewich’s demeanor became argumentative when confronted with inconsistent
statements such as his statement to Nanda that Toledano was watching the investigation
“closely” after he claimed that he did not update her during the investigation. Gecewich’s
testimony that he did not know about the union organizers and the Facebook pages are not 30
genuine. Gecewich testified in a purposefully evasive manner and appeared to be jittering in his
chair. Moreover, Gecewich’s testimony was filled with inconsistencies and his final report does
not accurately reflect his interview notes.
Graminger was a more credible witness for Respondent but even his testimony was 35
confusing and contradictory as described. On the one hand Graminger testified that Ortiz’ union
activity was not discussed during the meeting but on the other hand Graminger looked at the
union organizing campaign website as well as Facebook page where he viewed Ortiz’ posts
before the meeting. This example of contradictions and inconsistent statements are ripe within
these set of facts.40
McIntosh testified in a clear and straightforward manner. There were no inconsistent
statements. Thus, I rely upon McIntosh’s version of the October 18 meeting when Ortiz was
terminated.

104 Gecewich testified that he met with Cunningham, but his Board affidavit of January 8, 2018, does
not reflect such a meeting (Tr. 2322–2323).
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Legal Analysis
Moran and Ortiz Engaged in Protected Concerted Activity, and Did Not Lose the
Protection of the Act5
Before discussing whether Respondent violated the Act when terminating Ortiz and
disciplining Moran, I must first address the issue of whether Ortiz and Moran engaged in
protected concerted activity. Respondent argues that Moran and Ortiz were not engaged in
concerted activity for the purpose of mutual aid or protection when Moran sent the Workday10
profile screenshots to Ortiz. Based on Board precedent, I disagree.
Section 7 of the Act protects the right of employees to engage in “concerted activity” for
the purpose of collective bargaining or other mutual aid or protection. For an employee’s
activity to be “concerted” the employee must be engaged with or on the authority of other 15
employees and not solely on behalf of the employee himself. Meyers Industries (Meyers I), 268
NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert.
denied 474 U.S. 948 (1985), on remand Meyers Industries (Meyers II), 281 NLRB 882 (1986),
affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
The statute requires the activities to be “concerted” before they can be “protected.” Bethany 20
Medical Center, 328 NLRB 1094, 1101 (1999). The Board has held that activity is concerted if
it is “engaged in with or on the authority of other employees, and not solely by and on behalf of
the employee himself. Meyers I, supra; Meyers II, supra; Quicken Loans, Inc., 367 NLRB No.
112, slip op. at 3 (2019) (citations omitted) (profanity laced statement by single employee
concerning customer call routed to him was not protected or concerted as employees as a group 25
had no preexisting concerns about customer calls, and no evidence that employee sought to
initiate or induce group action). The question of whether an employee has engaged in concerted
activity is a factual one based on the totality of the circumstances. National Specialties
Installations, Inc., 344 NLRB 191, 196 (2005). The Act protects discussions between two or
more employees concerning their terms and conditions of employment. Whether an employee’s 30
activity is concerted depends on the way the employee’s actions may be linked to those of his
coworkers. Fresh & Easy Neighborhood Market, 361 NLRB 151, 153 (2014). Concertedness is
analyzed under an objective standard. Fresh & Easy Neighborhood Market, supra at 154.
Employees act in a concerted manner for a variety of reasons, some altruistic and some selfish.
Id. citing Circle K. Corp., 305 NLRB 932, 933 (1991), enfd. mem. 989 F.2d 498 (6th Cir. 1993). 35
Both Ortiz and Moran clearly engaged in concerted activity which is protected. Upon
learning that employees testified on behalf of Tesla during a union-sponsored California State
Assembly bill, Ortiz asked Moran to help him learn if these individuals were current employees.
Moran, in working with Ortiz, then went to the Workday system to search for these employees. 40
Once Moran found these employees, he sent screenshots of their Workday profiles to Ortiz.
Ortiz then posted the screenshots with his comments on the employees’ private Facebook page.
Ortiz posted these screenshots without Moran’s approval or consent. This private Facebook page
had been set up as a forum for employees to discuss unionization at the workplace—essentially a
virtual watercooler. Simply because Moran sent the screenshots to Ortiz and Ortiz decided to 45
add the Workday screenshots to the private Facebook page does not mean that Moran and Ortiz
did not act concertedly, as Respondent argues. They did not act together to post the pictures but
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each of their actions was to promote the union organizing drive at Tesla for the mutual aid and
protection of all employees and to improve the terms and conditions for all employees. See
Kaiser Engineers, 213 NLRB 752 (1974) (employee letters to legislators opposing relaxing of
immigration restrictions for engineers); Bethlehem Shipbuilding Corporation Ltd. v. NLRB, 114
F.2d 930 (1st Cir. 1940) (employee appearances on behalf of their coworkers before legislative 5
committees); Triple Play Sports Bar & Grille, 361 NLRB 308, 308–309 (2014) (Facebook
communications between employees complaining about employer tax withholding error
constituted “ ‘concerted activities’ and they were ‘for the purpose of . . . mutual aid or
protection’”); North West Electric Cooperative, 366 NLRB No. 132, slip op. at 1, fn. 1 (2018).
Respondent’s insistence on a narrow reading of the law is not warranted by Board law or the 10
purpose of Section 7 of the Act. Ortiz posted screenshots of Pratt and Ives’ Workday profiles to
point out employees who were not supportive of the Union. Pratt responded to Ortiz, informing
him that this was not the way to get other employees on board with unionization. Thus, Ortiz
removed the post. Still, Pratt decided to complain to Hedges, who originally asked him to go to
Sacramento on behalf of Tesla. Pratt complained that Ortiz’ Facebook post made him feel 15
singled out, but this claim is disingenuous since he forwarded the Facebook post to Hedges with
the remark, “Looks like we got under someone’s skin” with a smiling face and eyes and rosy
cheeks emoji. This addition of the emoji does not reflect a concern of harassment. This
complaint launched the investigation into Ortiz and Moran’s protected concerted activity.
20
Respondent argues that if Moran is found to have engaged in protected concerted activity,
his action of accessing and utilizing Workday for nonbusiness purposes sufficiently removed the
protection of Section 7 of the Act. Respondent bases its argument on disputed facts. Respondent
never had a rule that employees could only use Workday for business purposes, or restricted
employees’ use of Workday. Several witnesses testified that they had never received such 25
instructions from Respondent, nor did Respondent provide any evidence that this rule existed.
Obviously, the access employees receive in Workday is based upon their positions at Tesla.
Presumably, Moran along with others had access to employees’ profiles. Respondent attempts to
analogize Moran’s screenshots of Workday profiles to employees who steal business records or
personnel files from their employers. Moran’s actions came nowhere near such examples. 30
Moran used Workday not only for his own personnel records, to which he accessed, but also to
look up employees, where he is limited to the employees’ names and job titles. The employee
profiles were not private or confidential records. See Ridgley Mfg. Co., 207 NLRB 193, 196
(1973). In sum, Moran did not lose the protection of the Act for violating a nonexistent rule.
35
As for Ortiz, he reasonably understood that Gecewich was trying to learn about his
protected activities when he repeatedly asked who sent him the Workday profile screenshots
which he posted on the private Facebook page. Under these circumstances, Ortiz was under no
obligation to respond to questions to uncover protected activities. See Paragon Systems, Inc.,
362 NLRB 1561, 1567 (2015). Ortiz’ “lying” was not related to his job performance or 40
Respondent’s business, but to a protected right under the Act which he was not obligated to
disclose. See St. Louis Car Co., 108 NLRB 1523, 1525–1526 (1954). In Fresenius USA Mfg.
Inc., 362 NLRB 1065 (2015), the Board found that an employee’s dishonesty during an
investigation of misconduct of alleged harassment and threats was unprotected by the Act due to
the focus of the investigation on the allegation, and not on any union activity. That case in 45
inapposite as a comparator. Here, Respondent did not investigate Pratt’s specious claim of
harassment and being singled out, but instead Respondent chose to disregard the original
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complaint, and fabricated its own investigation into the Workday profile screenshots. Ortiz did
not lose the protection of the Act as the investigation focused solely on who provided him the
screenshots that he posted on the private Facebook page.105
Respondent Violated Section 8(a)(3) and (1) of the Act by Terminating Ortiz for Lying Regarding 5
Protected Concerted Activity
The credited evidence shows that Respondent terminated Ortiz for lying during an
investigation. An employer may not terminate an employee for lying in response to questions
regarding protected concerted activity. Tradewaste Incineration, 336 NLRB 902, 902 (2001) 10
(employee’s untruthful denial that he posted a wage-related notice was protected where it “did
not relate to the performance of his job performance or the [r]espondent’s business.”); St. Louis
Car Co., 108 NLRB 1523, 1525–1526 (1954) (employee’s untruthful denial of her union
organizing activity was protected where the denial “related not to the [r]espondent’s business at
all, but to personal rights guaranteed by [the Act] which she desired not to disclose.”). Here 15
Respondent admitted that Ortiz was terminated for his lying during the investigation when he did
not reveal from whom he received the screenshots, of which he was not obligated to disclose,
Respondent violated Section 8(a)(3) and (1) of the Act when terminating Ortiz. The analysis
regarding Ortiz’ termination should end here but, in the alternative, I will consider Ortiz’
termination under the Wright Line, supra, framework. 20
Respondent Violated Section 8(a)(3) and (1) of the Act by Terminating Ortiz and Moran
Under Wright Line
When more than one motive exists for the alleged discriminatory action for protected 25
concerted activity, a mixed motive analysis applies.106 Under Wright Line, supra at 1089, the
General Counsel has the initial burden to show that an employee’s protected activities were a
motivating factor in the employer’s actions against him. 251 NLRB at 1089. The requisite
elements to support a finding of discriminatory motivation are union or other protected concerted
activity by the employee, employer knowledge of the activity, and animus on the part of the 30
employer. To support its initial burden under Wright Line, “the General Counsel must prove by
a preponderance of the evidence that union animus was a substantial or motivating factor in the
adverse employment action.” Consolidated Bus Transit, Inc., 350 NLRB 1064, 1065 (2007),
enfd. 577 F.3d 467 (2d Cir. 2009). The burden then shifts to the employer to demonstrate that it
would have taken the same actions even absent the employees’ protected conduct. Wright Line, 35

105 Respondent does not contend that Ortiz lost the protection of the Act for his Facebook post where
a totality of the circumstances test analysis would be undertaken. Pier Sixty, LLC., 362 NLRB 505, 506
(2015).
106 I agree with Respondent that the Burnup & Sims, supra, framework is not applicable regarding
Ortiz’ discharge. Under Burnup & Sims, supra, an employer violates the Act by disciplining or
discharging an employee based on a good-faith belief that the employee engaged in misconduct during
otherwise protected activity, if the General Counsel shows that the employee was not, in fact, guilty of
that misconduct. Burnup & Sims, supra, applies to cases involving mistakes of fact, not mistakes of law.
Here, this is not a “mistake of fact” case, and Burnup & Sims, supra, would not apply. Likewise, an
Atlantic Steel analysis would not apply as the issue stems from Ortiz’ off-duty, offsite use of Facebook to
communicate with other employees. See Triple Play Sports Bar & Grille, supra; Pier Sixty, supra.
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supra at 1089; see also Electrolux Home Products, Inc., 368 NLRB No. 34, slip op. at 3 (2019);
National Hot Rod Association, 368 NLRB No. 26, slip op. at 4 (2019) (citations omitted) (an
employer need not prove the disciplined employee had committed the alleged misconduct but
only needs to show it had a reasonable belief that the employee committed the alleged offense
and then it acted on that belief). First, I will discuss Ortiz’ termination followed by Moran’s 5
discipline using the Wright Line framework.107
As set forth above, Ortiz engaged in protected concerted activity which did not lose the
protection of the Act. Furthermore, Respondent was well-aware of Ortiz’ activity. First,
Hedges, who referred Pratt’s complaint to Gecewich, knew that Ortiz’ Facebook post regarding 10
Pratt and Ives stemmed from the two employee’s testimony during a California State Assembly
hearing on the union-sponsored bill. Hedges knew that Ortiz was actively involved with the
Union as he had also requested Respondent’s Cal/OSHA safety records which were then the
subject of a leaflet passed out by union supporters. Gecewich also knew of Ortiz’ activities as he
received a copy of the employee petition regarding wages which Ortiz had signed. Gecewich 15
also knew that the Facebook post with screenshot arose from an issue in Sacramento which
involved employees speaking about a union-sponsored legislative bill. I do not credit
Gecewich’s attempt to wall himself off from knowledge of Ortiz’ union activity by claiming not
to know the subject matter that caused Ortiz to post a comment on the employee’s Facebook
page. Finally, Graminger, the decisionmaker, also knew about Ortiz’ union activity as he looked 20
at the union website and knew that Ortiz was involved with the Union, which is why he went to
Hochholdinger to confirm that termination would be appropriate. Graminger also saw the
screenshots Ortiz posted. Even McIntosh, who attended Gecewich’s meeting with Graminger to
present his findings and recommendations, testified that it was “common knowledge” that Ortiz
actively participated in the organizing campaign.25
The General Counsel has also proven Respondent’s union animus towards Ortiz’ actions.
Animus can be established through direct evidence or inferred from circumstantial evidence. See
Medic One, Inc., 331 NLRB 464, 475 (2000) (noting that “[e]vidence of suspicious timing, false
reasons given in defense, failure to adequately investigate alleged misconduct, departures from 30
past practices, tolerance of behavior for which the employee was allegedly fired, and disparate
treatment of the discharged employees all support inferences of animus and discriminatory
motivation”); Electrolux Home Products, supra; Temp Masters, Inc., 344 NLRB 1188, 1193
(2005); Promedica Health Systems, Inc., 343 NLRB 1351, 1361 (2004).
35
First, the record is clear that Respondent exhibited animus towards Ortiz’ actions as well
as animus towards union supporters which is established by the numerous unfair labor practices
and the entire record. See Metro-West Ambulance Service, 360 NLRB 1029 (2014); Lucky Cab
Co., 360 NLRB 271, 274 (2014) (employer’s contemporaneous 8(a)(1) violations demonstrate its
union animus); Bates Paving & Sealing, Inc., 364 NLRB No. 46, slip op. at 3 (2016). 40
Respondent sought to counter the Union’s drive to pass a California State Assembly bill which
could affect Respondent economically by sending “positive” employees to Sacramento to speak

107 Again, I disagree with the General Counsel and Respondent that a Burnup & Sims analysis is
appropriate. The first prong of Burnup & Sims fails as Respondent could not have had an honest belief
that Moran engaged in misconduct for improperly accessing and using Workday. Based on the totality of
the circumstances, Respondent promulgated this rule in response to Moran’s protected concerted activity.
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on behalf of Tesla. In reaction, Ortiz posted a comment along with the Workday screenshots of
Pratt and Ives on the employees’ private Facebook page. Pratt responded to Ortiz, who promptly
removed the post. What should have been a discussion between two employees regarding their
individual rights to organize or to not organize became an investigation into Ortiz. Even prior to
this event, Respondent, as found herein, committed other violations of the Act such as 5
interrogating Ortiz about the Cal/OSHA logs and to whom he gave them. By September, the
union organizing campaign was well underway, and Ortiz’ name was known to management.
Shamrock Foods Company, 366 NLRB No. 117 (2018).
The evidence shows examples of circumstantial evidence which point to Ortiz’ 10
termination being unlawfully motivated. Shamrock Foods, supra. Pratt complained to Hedges,
albeit with little concern based on his text message reply to Hedges (“Looks we got under some
people’s skin” and smiling face and eyes and rosy cheeks emoji). Hedges, who had been asked
by Toledano to find “positive” employees to appear on behalf of Tesla, referred the “complaint”
to Gecewich who promptly agreed to investigate the manner. During Gecewich’s initial intake 15
of the complaint, Pratt conveyed his concern about the post and Kostich who saw the Facebook
post complained that he did not think it was proper for Ortiz to use Workday in the way he used
it. Gecewich then decided to shift the focus of his investigation to Workday since he knew that
the Facebook post was related to the Union. In so doing, Gecewich did not even speak to Ives
whose photo was also posted on Facebook. Gecewich providing shifting reasons for the purpose 20
of the investigation where he claimed it was due to screenshots of Workday on Facebook, but in
the investigatory summary he wrote “This investigation was initiated to determine if proprietary
business systems were accessed for non-business purposes.” During this investigation,
Gecewich kept Toledano, who identified pro-union employees as adversaries, informed of the
progress of the investigation. Gecewich did not ask Pratt or Kostich how they used Workday 25
and never asked others at Tesla about the uses of Workday. Gecewich claimed he did not know
what happened in Sacramento to prompt Pratt’s complaint but a prior version of the report of
investigation shows that he knew that the Sacramento matter involved employees speaking on
behalf of Tesla and the Union. From the start of the investigation, initiated by Hedges,
Respondent sought the result it desired. See St. Paul Park Refining Co., 366 NLRB No. 83 30
(2018) (failure to conduct complete and objective investigation).
When finding comparable disciplinary actions, it should be noted that Gecewich did not
inform Graminger of the details but simply noted that there were similar actions in the past.
Later, the only instance Gecewich could find of comparable discipline was of a management 35
official at another company owned by Tesla who lied when he was being investigating for
alcohol and drug use in a company vehicle along with improper relations with a coworker.
Respondent did not establish that it treated similar incidents involving employees similarly.
Even after Ortiz told Gecewich from whom he received the Workday screenshots and why he did
not want to divulge any names, Ortiz still recommended termination. 40
Graminger, who was to be the neutral decision maker, knew about the connection
between the Facebook post and Workday as he asked to see the post. But the report was also
filled with errors by Gecewich. For example, the report states that Ortiz disclosed confidential
employee information and telephone numbers on Facebook. This statement is simply false. Any 45
confidential information was disclosed by Pratt, and Ortiz did not disclose telephone numbers.
Other errors in the report include attributing the Workday complaint to Pratt when instead
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Kostich complained about a perceived misuse of Workday. These errors support an inference
that Respondent sought to terminate Ortiz with false information.
The timing of events also relates directly to Ortiz’ protected activity as the investigation
began quickly after Ortiz’ Facebook post and within the next month he was terminated. 5
McClendon Electrical Services, 340 NLRB 613, 613, fn. 6 (2003) (finding discharge that
occurred a day after protected concerted activity supported a finding of unlawful motivation);
Mira-Pak, Inc., 147 NLRB 1075, 1081 (1964), enfd. 354 F.2d 525 (5th Cir. 1965) (finding
termination unlawful where discharge occurred 2 days after protected concerted activity). Under
all the circumstances of this matter, Respondent’s termination of Ortiz is pretextual. Respondent 10
sought to punish the employees who pushed back against the employees who spoke on behalf of
Tesla and knowing that they could not directly punish Ortiz for his Facebook post sought to find
another way. Moreover, during this second meeting, Ortiz admitted he did not tell the truth
during the first meeting with Gecewich as to whom he received the Workday screenshots
because he did was not certain who sent him the screenshots and did not want to bring anyone 15
else into this matter; he sought to protect his coworkers. A finding of pretext defeats any attempt
by Respondent to show that it would have terminated Ortiz absent his protected activities. Even
if no pretext exists, Respondent continues to fail to meet its burden because there were no
comparators or other evidence to establish, they would have taken the same action against Ortiz.
Thus, Respondent violated Section 8(a)(3) and (1) when unlawfully terminating Ortiz. 20
As for Moran, as set forth above, he engaged in protected concerted activity which did
not lose the Act’s protection. Respondent clearly knew about Moran’s protected concerted
activity. Moran publicly announced the organizing campaign at Tesla with his February blog
post which drew a response from the head of the Company. Gecewich, who investigated Pratt’s 25
complaint, recognized Moran’s name from the blog post. Moran also initiated an employee
petition regarding safety which caused Musk and Toledano to meet with him where they engaged
in multiple unfair labor practices. Toledano had been kept apprised on the investigation by
Gecewich. Thus, it is beyond dispute that Respondent knew about Moran’s protected concerted
activity.30
Next, the General Counsel has also proven animus regarding Moran. Again, Respondent
violated the Act numerous times during this time period as described within which supports a
finding of animus. Respondent’s reason for warning Moran is pretextual which supports a
finding of animus. See Lucky Cab, supra at 274. During Gecewich’s meeting with Moran, 35
although he already knew that Moran viewed Pratt and Ives’ Workday profiles the same day they
were posted by Ortiz on Facebook, Gecewich asked Moran many questions about how he used
Workday. Thereafter, Gecewich directly asked Moran about Pratt and Ives’ Workday profiles.
Moran did not deny that he sent the screenshots to Ortiz. Thus, Gecewich could not find that
Moran lied during the investigation, but he then decided to create a new Workday rule, claiming 40
that Workday was to be used only for “legitimate and official business purposes.” This rule
never existed prior to disciplining Moran, and Respondent presented no comparable disciplinary
actions. By promulgating this Workday rule and enforcing this rule disparately against Moran,
Respondent violated Section 8(a)(3) and (1) of the Act. Gecewich’s final report also contained
many errors as explained above. In addition, Moran never claimed that the UAW asked him to 45
look up the employees on Workday, and Moran never stated that if Ortiz did not tell the truth
about where he received the Workday profile screenshots, he would be “dishonest.” Respondent,
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in post hoc rationalization, claims that it would have disciplined Moran regardless of protected
concerted activity due to other internal systems rules, but this explanation only comes now.
In sum, the General Counsel met its burden to show that Respondent terminated Ortiz
and disciplined Moran for discriminatory reasons and promulgated a rule in response to 5
protected concerted activity. I therefore find that Respondent violated Section 8(a)(3) and (1) of
the Act by terminating Ortiz, disciplining Moran, and promulgating a rule in response to
protected concerted activity as alleged in complaint paragraphs 8(b)(iii), (c) and (d).
Respondent Violated Section 8(a)(1) when Interrogating Moran and Ortiz10
As for the allegation that Gecewich interrogated Ortiz on September 21 and October 12,
and Moran on October 12, the Board considers the totality of the circumstances in determining
whether the questioning of an employee constitutes an unlawful interrogation. Rossmore House,
supra (the Board set forth a test for examining whether an interrogation is unlawful); Stoody Co., 15
320 NLRB 18, 18 (1995) (the Board considers background, nature of information sought, and
method of interrogation). The test is an objective one that does not rely on the subjective aspect
of whether the employee was, in fact, intimidated. Multi-Ad Services, 331 NLRB 1226, 1227–
1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001). The Board has also found that questioning an
employee about his protected concerted activity may constitute an unlawful interrogation. See 20
Century Restaurant & Buffet, Inc., 358 NLRB 143, 157 (2012).
As set forth above, Gecewich interrogated Ortiz on both September 21 and October 12,
and Moran on October 12. He questioned Ortiz repeatedly about the Workday profile
screenshots he posted even after he knew that Moran had sent these screenshots to Ortiz. 25
Gecewich knew that Moran had sent the screenshots to Ortiz but asked him many questions
about Workday, and continued to investigate his use of Workday, despite knowing that the
screenshots were used in the course of protected concerted activity. All of Gecewich’s questions
were designed to elicit information from Ortiz and Moran about their protected concerted
activity and their union organizing activities. 30
Section 7 of the Act gives employees the right to keep confidential their union activity.
Guess?, Inc., 339 NLRB 432, 434 (2003); National Telephone Directory Corp., 319 NLRB 420
(1995). Each interrogation by Gecewich of Ortiz and Moran was unlawful as Respondent has
not “demonstrated that its need for the information justifies compromising its employees’ 35
Section 7 right to confidentiality.” Guess?, supra at 435. Gecewich clearly knew that the
Workday profile screenshots arose from employees testifying on behalf of Tesla at a California
State Assembly hearing. Gecewich knew there was a union organizing campaign as well and
that Moran and Ortiz were prominent in this campaign. Moreover, after Gecewich investigated
Workday, Gecewich knew that it more likely than not that Moran sent the screenshots to Ortiz. 40
Thus, there was no need to probe into the matter any further. Under the totality of the
circumstances, Gecewich’s actions were coercive and sought information from Ortiz and Moran
about their protected concerted activity. Hence, I find that Respondent violated Section 8(a)(1)
of the Act with each interrogation alleged at complaint paragraphs 8(b)(i) and 8(b)(ii).
45
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72
XIV. CONSOLIDATED COMPLAINT PARAGRAPH 6:108 RESPONDENT VIOLATED SECTION
8(A)(1) OF THE ACT WITH ELON MUSK’S MAY 20, 2018 TWEET
The General Counsel alleges that Musk violated Section 8(a)(1) of the Act when he
threatened employees with loss of stock options with this tweet on May 20, 2018: 5
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.10
(GC Br. at 68–71). Respondent argues that Musk’s tweet was privileged under Section 8(c) of
the Act as well as the First Amendment, cannot be considered in isolation, that Tesla should not
be liable for Musk’s tweet, and his statement could not be considered a threat (R Br. at 174–186).
15
The parties stipulated the following facts (Jt. Exh. 4):
There are approximately 157,000,000 daily active Twitter accounts and over 336,000,000
monthly active Twitter accounts. Tweets may be viewed, reviewed, republished, or reported on
or in Twitter, Facebook, radio, television, newspapers, news media, and various other print and 20
social media platforms. Musk has approximately 22,700,000 followers on Twitter. There are
approximately 82 Twitter accounts worldwide that have more Twitter followers than Musk. The
Twitter handle, “@elonmusk,” as Musk’s personal Twitter account. Musk’s Twitter account also
displays a blue verified employee badge, which according to www.Twitter.com lets people know
that an account of public interest is authentic. Musk has used the “@elonmusk” Twitter handle 25
to tweet about Respondent’s business decisions and plans, finances, production goals, personnel
matters, and breaking news. Respondent has its own Twitter handle, “@Tesla,” which is used to
make company statements on behalf of Respondent. Twitter, and the use of tweets, is a
commonly accepted form in which some companies announce news in lieu of, or in addition to,
press releases.30
On May 20, 2018, Musk (@elonmusk) tweeted the following in response to three Twitter
accounts:
About 2% of Tesla, incl salaried & hourly, union and non-union were let go in 35
annual review. Only known union person fired was a guy who repeatedly
threatened non-union supporters verbally & on social media & lied about it.
(GC Exh. 38).109 Also on May 20, 2018, Musk (@elonmusk) tweeted, replying to
@dmatkins137 @ShayneRarma @NASA:40
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

108 This complaint arises from case 32–CA–220777 which was consolidated into this matter.
109 This tweet appears to refer to Respondent’s termination of Ortiz. I note that Musk provides a
completely different justification for why Ortiz was terminated.
JD(SF)–33–19
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nothing? Our safety record is 2X better than when plant was UAW & everybody
already gets healthcare.
(GC Exh. 56). Several media outlets reported Musk’s tweets (R Exh. 45).110 On May 23, 2018,
Musk tweeted in response to another tweet, “Exactly. UAW does not have individual stock 5
ownership as part of the compensation at any other company.” (R Exh. 45(a)). Toledano
testified that she followed Musk’s tweets “to make sure our CEO was not tweeting dumb stuff”
and understood that Musk tweeted on behalf of Tesla (Tr. 953–654).
Musk sent the two May 20, 2018 tweets, as stated above, from his #@elonmusk” Twitter 10
handle, which are still posted and viewable by the public. On Twitter, replies to tweets that are
part of the same “thread” or conversation are indicated by replying to a Twitter account’s
username with “a@,” i.e. “@elonmusk.”
From May 20 to 23, 2018, Musk and several other Twitter users engaged in a “thread”15
which included the tweet which the General Counsel alleges is a threat (GC Exh. 56, 69). The
Twitter users included “@dmatkins137,” which is associated with an individual named David
Atkins, “@ericbrownzzz,” which is associated with an individual named Eric Brown,
“@ParkerMolloy,” which is associated with an individual named Parker Molloy,
“@jackallisonLOL,” which is associated with an individual named Jack Allison, “@jAltWouss,” 20
which is associated with an individual named Wooter.
It is not possible to identify or determine the determine the number of individuals that
viewed the tweets identified above across Twitter, Facebook, radio, television, newspapers, news
media, and various other print and social media platforms. It is also not possible to know or 25
determine if every individual that viewed the alleged unlawful tweet by Musk also viewed
Musk’s tweets in the thread. It is known that the tweets by Musk, identified in General Counsel
Exhibits 38, 56 and 69, were republished and disseminated; however, it is not possible to
determine the full extent to which Musk’s tweets, as set forth in General Counsel Exhibits 38, 56
and 69, were republished or otherwise disseminated via Twitter, Facebook, radio, television, 30
newspapers, news media, and various other print and social media platforms.
Legal Analysis
The test to determine if a statement violates Section 8(a)(1) is whether “under all 35
circumstances” the remark “reasonably tends to restrain, coerce, or interfere with the employee’s
rights guaranteed under the Act. GM Electrics, 323 NLRB 125, 127 (1997). Motivation nor
actual effects are considered. Miller Electric Pump & Plumbing, 334 NLRB 824, 825 (2001).
An employer violates Section 8(a)(1) of the Act by threatening employees with adverse
consequences for engaging in union activities. NLRB v. Gissel Packing Co., supra at 618–619. 40
An employer is free to communicate to his employees any of his general views on unionism or

110 In these media articles, the authors’ noted responses from a Tesla’s spokesperson (R Exh. 45). A
Tesla spokesperson noted that Musk’s tweet was “simply recognition of the fact that unlike Tesla, we’re
not aware of a single UAW-represented automaker that provides stock options or restricted unit to their
production employees, and UAW organizers have consistently dismissed the value of Tesla equity as part
of our compensation package” (R Exh. 45(a)).
JD(SF)–33–19
74
any of his specific views about a union per Section 8(c) of the Act so long as the
communications do not contain a threat of reprisal or force or promise of benefit. An employer’s
prediction concerning what will happen if employees unionize “must carefully be phrased on the
basis of objective fact to convey an employer’s belief as to demonstrably probable consequences
beyond his control.” Gissel, supra at 618. If there is any implication that an employer may act 5
on his own initiative unrelated to economic necessities, “the statement is no longer a reasonable
prediction based on available facts but a threat of retaliation based on misrepresentation and
coercion, and as such without the protection of the First Amendment.” Id.
Here, Musk’s tweet was sent out to 22,700,000 followers on Twitter, some of whom are 10
employees of Tesla. Musk’s tweet can only be read by a reasonable employee to indicate that if
the employees vote to unionize that they would give up stock options. Musk threatened to take
away a benefit enjoyed by the employees consequently for voting to unionize. The Board has
held that statements reflecting the possible loss of existing benefits through good faith bargaining
does not constitute an unlawful threat of the loss of existing benefits. Wild Oats Markets, Inc., 15
344 NLRB 717, 717–718 (2005) (no threat where employer communicated to employees in a
flyer that employees could lose benefits during collective bargaining). In contrast, Musk’s
statement cannot be read as an outcome that could occur due to good-faith collective bargaining
but instead made this statement as a threat of unilateral discontinuation of existing benefits if the
employees unionized. Medical Center of Ocean County, 315 NLRB 1150, 1154 (1994) (threat 20
where statement to employees that “[y]ou could lose your benefits” was susceptible to
interpretation that employer intended to discontinue existing benefit prior to bargaining). Musk
did not reference collective bargaining or express that the loss of stock options could be a result
of negotiations. Musk presented no objective facts to support his statement that employees
would lose their stock options. In Dyncorp, 343 NLRB 1197, 1198–1199 (2004), the Board 25
found that Respondent unlawfully threatened employees with the loss of employer stock
contribution monies if the employees chose union representation. Musk’s statement indicates
that employees would lose stock options if they voted to unionize. Thus, his statement was not a
prediction carefully phrased based on objective fact to convey Respondent’s belief as to probable
consequences beyond its control, and I find his statement violates Section 8(a)(1). Consequently, 30
Musk’s tweet lost the protection of Section 8(c) because Musk implied that Tesla would act on
its own initiative to remove stock options if the employees chose to unionize.
As its affirmative defense, Respondent argues that Musk’s Twitter account is his own and
his message was directed to a non-employee of Tesla. However, the parties stipulated that Musk 35
has over 22 million Twitter followers who would have seen the unlawful tweet; these followers
included employees and nonemployees. With Twitter, who views comments is unclear. This
dissemination is akin to a company official issuing a press release to the public where anyone
including employees may read the statement. See Vemco, Inc., 304 NLRB 911, 925 (1991)
(press release broadcast to the public sufficiently communicated to the employees). In addition, 40
the parties stipulated that Twitter, and the use of tweets, is a commonly accepted form in which
some companies announce news in lieu of, or in addition to, press releases. Moreover, Toledano
testified that she understood Musk to tweet on behalf of Tesla. It is important to note that
Respondent presented no evidence that Tesla disavowed any of Musk’s tweets about the
company. But even if Respondent had done so, under existing Board law, as discussed 45
previously, Tesla is liable for a Section 2(11) supervisor’s actions—Musk who is CEO of the
company. Furthermore, Respondent also argues that Musk’s tweet is protected by the First
JD(SF)–33–19
75
Amendment, and that Tesla should not be held liable for his opinion. However, in Gissel, the
Supreme Court specifically set forth that a statement loses the protection of the First Amendment
if the statement is based on misrepresentation regarding the consequences of bargaining if the
employees unionized. Musk is Tesla’s highest-ranking officer, and Respondent cannot divorce
itself from Musk’s comments. Again, in as much as employers are responsible for a supervisor’s 5
conduct in the workplace, Tesla is responsible for Musk’s comments in this instance where there
is an allegation of an unlawful threat. See Glenroy Construction Co., 215 NLRB 866, 867
(1974) (employer violated the Act based on supervisor’s unauthorized and “personal” statement),
enfd. 527 F.2d 465 (7th Cir. 1975).
10
Respondent argues that Musk’s entire Twitter “course of conduct” should be considered,
and if not considered, Musk’s Twitter statement in isolation is not a threat. In the context of the
union organizing campaign, which had been active for at the least the prior year, any employee
reading Musk’s statement would reasonably conclude that Musk threatened to remove employee
stock options if the employees chose unionization. Based on my research, this issue of whether 15
Musk’s Twitter statement could violate Section 8(a)(1) of the Act is an issue of first impression.
I choose to analyze this issue similarly to how the Board has handled other social media matters,
specifically with Facebook. The Board has recognized that employees have increasingly been
using social media to communicate with one another about work. See Triple Play Sports, supra
(Facebook “likes” may be protected activity); Knauz BMW, 358 NLRB 1754 (2012) (employee 20
posted photos and comments to Facebook); Hispanics United of Buffalo, 359 NLRB 368, 368
(2012) (employees unlawfully discharged for their responses to coworkers’ criticisms of their job
performance). In my view, an analysis of a supervisor’s statement on Twitter should be no
different. In Miklin Enterprises., 361 NLRB 283, 290 (2014), the Board found that postings by
two supervisors on an antiunion Facebook page violated Section 8(a)(1) of the Act where the 25
supervisors encouraged employees to harass an employee for his union activity. In that instance,
the Facebook page was “open” like the openness of Twitter posts, which are accessible to
anyone. Likewise, here, Musk’s statement violated Section 8(a)(1) as described in complaint
paragraph 6.
30
CONCLUSIONS OF LAW
1. Respondent, Tesla, Inc., has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
35
2. The Union, the International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL–CIO, has been a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent committed unfair labor practices in violation of Section 8(a)(1) of the Act 40
by:
a. Maintaining and enforcing a rule on February 10, 2017 and May 24, 2017 that, in
the absence of legitimate business reasons, prohibits off duty employees from
distributing union literature in the employees’ parking lot.45
JD(SF)–33–19
76
b. Promulgating a rule on March 23, 2017 prohibiting employees from distributing
union stickers, leaflets and pamphlets without first obtaining permission, and
threatening discipline if failing to do so.
c. Interrogating employees about their union activities on May 24, 2017.5
d. Soliciting grievances from employees about safety concerns and impliedly
promising to remedy them on June 7, 2017 during meeting with Respondent’s
chief executive officer and chief people officer during a union organizing
campaign.10
e. Informing employees during meeting with Respondent’s chief executive officer
and chief people officer on June 7, 2017 that it would be futile to vote in favor of
the Union by telling them that they have no voice with the Union.
15
f. Maintaining and enforcing a rule in August 2017 prohibiting employees from
wearing union insignia showing support for the Union or any other labor
organization.
g. Informing an employee in August 2017 that it would be futile to vote for the 20
Union.
h. Interrogating employees in September and October 2017 about their union
activities.
25
i. Promulgating a rule regarding Workday in response to protected concerted
activity in October 2017.
j. Threatening employees on May 20, 2018 with loss of stock options if they vote in
favor of the Union. 30
4. By terminating Richard Ortiz on October 18, 2017, and disciplining Jose Moran on
October 19, 2017, Respondent violated Section 8(a)(3) and (1) of the Act.
5. The unfair labor practices found affect commerce within the meaning of Section 2(6) 35
and (7) of the Act.
6. All other allegations of the complaint are dismissed.
REMEDY40
Having found that Respondent has engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act. Having found that Respondent has violated Section 8(a)(1) of the Act by
maintaining and enforcing a rule on February 10 and May 24, 2017, that, in the absence of 45
legitimate business reasons, prohibits off-duty employees from distributing union literature in the
employees’ parking lot, I shall order that Respondent rescind the rule. Having found that
JD(SF)–33–19
77
Respondent has violated Section 8(a)(1) of the Act by promulgating a rule on March 23, 2017,
prohibiting employees from distributing union stickers, leaflets, and pamphlets without first
obtaining permission, and threatening discipline if failing to do so, I shall order that Respondent
rescind the rule. Having found that Respondent has maintained and enforced a rule in August
2017 prohibiting employees from wearing union insignia showing support for the Union or any 5
other labor organization, I shall order that Respondent rescind the rule. Having found that
Respondent has violated Section 8(a)(1) of the Act by promulgating a rule in October 2017
regarding Workday in response to protected concerted activity, I shall order that Respondent
rescind the rule.
10
Respondent, having discriminatorily disciplined Jose Moran, must rescind the
disciplinary action and remove all references from his personnel files. Respondent, having
discriminatorily terminated Richard Ortiz, must offer him reinstatement and make him whole for
any loss of earnings and other benefits. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 15
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). In accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), Respondent
shall compensate Richard Ortiz for his search-for-work and interim employment expenses
regardless of whether those expenses exceed interim earnings, and such expenses shall be
calculated separately from taxable net backpay, with interest at the rate prescribed in New 20
Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra.
In accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101
(2014), Respondent shall compensate Richard Ortiz for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and, in accordance with AdvoServ of New Jersey, Inc., 363 25
NLRB No. 143 (2016), Respondent shall, within 21 days of the date the amount of backpay is
fixed either by agreement or Board Order, file with the Regional Director for Region 32 a report
allocating backpay to the appropriate calendar year(s). The Regional Director will then assume
responsibility for transmitting the report to the Social Security Administration at the appropriate
time and in the appropriate manner.30
The General Counsel also requests that I order Respondent to reimburse Richard Ortiz for
consequential economic harm incurred by him as a result of its unlawful conduct, a remedy not
traditionally included in Board orders (GC Br. at 109). See Operating Engineers Local 513
(Long Construction Co.), 145 NLRB 554 (1963). I am obligated to following existing Board 35
precedent, and thus, decline to recommend this remedy. See Pathmark Stores, Inc., 342 NLRB
378, 378 fn. 1 (2004); Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984).
I will order that the employer post a notice at the Fremont facility in the usual manner,
including electronically to the extent mandated in J. Picini Flooring, 356 NLRB 11, 15–16 40
(2010). In accordance with J. Picini Flooring, the question as to whether an electronic notice is
appropriate should be resolved at the compliance phase. Id. supra at 13.
The General Counsel requests that I order that the notice be read aloud with the presence
of security guards, managers and supervisors and the Union, if requested (GC Br. at 104–106). 45
The Board has recognized that notice reading is an extraordinary remedy but, in this instance, I
believe the facts present themselves to support such a request. Sysco Grand Rapids, LLC, 367
JD(SF)–33–19
78
NLRB No. 111 (2019). Respondent by numerous supervisors and agents, including its chief
executive officer and chief people officer committed many violations of the Act. See Stern
Produce Company, Inc., 368 NLRB No. 31, slip op. at 5 (2019) (citing North Memorial Health
Care, 364 NLRB No. 61, slip op. at 1 (2016) (notice reading appropriate in part due to high-
ranking responsible management officials in unfair labor practices), enfd. in relevant part 860 5
F.3d 639 (8th Cir. 2017). Such pervasive unlawful conduct, as described and found herein,
warrants a broad cease-and-desist order and a notice reading. Such a public reading of the notice
will serve to reassure employees that that their employer and its managers are bound by the Act’s
requirements. Homer D. Bronson Co., 349 NLRB 512, 515 (2007) (and cited cases), enfd. mem.
273 Fed.Appx. 32 (2d Cir. 2008). 10
Accordingly, I recommend that Respondent be ordered to convene its employees and
have Elon Musk (or, if he is no longer the chief executive officer, a high-ranking management
official), in the presence security guards, managers and supervisors, a Board agent and an agent
of the Union, if the Region and/or the Union so desire, read the notice aloud to employees, or, at 15
Respondent's option, permit a Board agent, in the presence Musk, to read the notice to the
employees at the Fremont facility only. See Bozzuto’s, Inc., 365 NLRB No. 146, slip op. at 5
(2017). I do not order a notice reading at the Sparks facility as no violations of the Act occurred
there.
20
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended111
ORDER
25
Respondent, Tesla, Inc., Palo Alto, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
30
(a) Maintaining and enforcing a rule that, in the absence of legitimate business
reasons, prohibits off-duty employees from distributing union literature in the employees’
parking lot.
(b) Promulgating a rule prohibiting employees from distributing union literature, 35
leaflets and pamphlets without first obtaining permission, and threatening discipline if failing to
do so.
(c) Interrogating employees about their union activities.
40
(d) Soliciting grievances from employees about safety concerns and impliedly
promising to remedy them.

111 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–33–19
79
(e) Informing employees that it would be futile to vote for the Union.
(f) Maintaining and enforcing a rule prohibiting employees from wearing union
insignia showing support for the union or any other labor organization.
5
(g) Promulgating a rule regarding Workday in response to protected concerted
activity.
(h) Threatening employees with loss of benefits if vote in favor of the Union.
10
(i) Terminating and disciplining any employee because of their support for the Union
or any other labor organization.
(j) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.15
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the rule orally announced to off-duty employees on February 10, 2017
and May 24, 2017, which prohibited employees from distributing on their 20
nonwork time union literature in the employees’ parking lot.
(b) Rescind the rule orally announced to employees on March 23, 2017, which
prohibited employees from distributing union stickers, leaflets and pamphlets
without first obtaining permission and threatening discipline if failed to do so.25
(c) Rescind a rule prohibiting employees from wearing union insignia showing
support for the Union or any other labor organization.
(d) Rescind a rule regarding Workday which was promulgated in response to 30
protected concerted activity in October 2017.
(e) Within 14 days of the date of the Board’s Order, remove from its files any
reference to the unlawful warning issued to Jose Moran, and within 3 days
thereafter, notify the employee in writing that this has been done and that the 35
warning will not be used against him in any way.
(f) Within 14 days of the date of the Board’s Order, offer Richard Ortiz full
reinstatement to his former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any other rights or 40
privileges previously enjoyed.
(g) Make Richard Ortiz whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him, in the manner set forth in the remedy
section of this decision.45
JD(SF)–33–19
80
(h) Compensate Richard Ortiz for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file with the Regional Director for Region 32,
within 21 days of the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the appropriate calendar
year.5
(i) Within 14 days of the date of the Board’s Order, remove from its files any
reference to the unlawful termination, and within 3 days thereafter, notify the
employee in writing that this has been done and that the termination will not be
used against him in any way.10
(j) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including 15
an electronic copy of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this Order.
(k) Within 14 days after service by the Region, post at its facility in Fremont,
California, the attached notice marked “Appendix”112 on forms provided by the20
Regional Director for Region 32, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as by email, posting25
on an intranet or an internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility 30
involved in these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since February 10, 2017.
(l) Within 14 days after service by the Region, hold a meeting or meetings, at the 35
Fremont facility, scheduled to ensure the widest possible attendance, at which the
“Notice to Employees” is to be read to the employees by Respondent’s chief
executive officer, Elon Musk or at Respondent’s option, by a Board agent in the
presence of Musk, along with security guards, managers and supervisors. If Musk
is no longer an owner or officer of the Respondent, then the Respondent shall 40
designate another owner or officer to conduct or be present for the reading.

112 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(SF)–33–19
81
(m) Within 21 days after service by the Region, file with the Regional Director for
Region 32 a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has taken to comply.
5
IT IS FURTHER ORDERED that the complaint allegations are dismissed insofar as they
allege violations of the Act not specifically found.
Dated, Washington, D.C. September 27, 2019
10
____________________
Amita Baman Tracy
Administrative Law Judge
JD(SF)–33–19
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain and enforce a rule that, in the absence of legitimate business reasons,
prohibits off-duty employees from distributing union literature in the employees’ parking lot.
WE WILL NOT promulgate a rule that prohibits you from distributing union stickers, leaflets,
and pamphlets without receiving permission, and threatening discipline if you fail to do so.
WE WILL NOT coercively question you about your union activities.
WE WILL NOT solicit your grievances and impliedly promise to remedy them in order to
discourage union support or activity.
WE WILL NOT inform you that it is futile to support the International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America, AFL–CIO or any
other union.
WE WILL NOT maintain and enforce a rule that prohibits you from wearing union insignia to
show your support for the International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL–CIO or any other labor organization.
WE WILL NOT promulgate a rule regarding Workday in response to protected concerted
activity.
WE WILL NOT threaten employees with loss of benefits if you vote in favor of the
International Union, United Automobile, Aerospace and Agricultural Implement Workers of
America, AFL–CIO, or any other labor organization.
JD(SF)–33–19
WE WILL NOT terminate and discipline any of you because you support the International
Union, United Automobile, Aerospace and Agricultural Workers of America, AFL–CIO (UAW)
or any other labor organization.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights listed above.
WE WILL rescind the rule orally announced to off-duty employees on February 10 and May 24,
2017, which prohibited them from distributing during their nonworking time union literature in
the employees’ parking lot.
WE WILL rescind an oral rule of March 23, 2017, that prohibits you from distributing union
stickers, leaflets, and pamphlets without receiving permission, and threatening discipline if you
fail to do so.
WE WILL rescind a rule that prohibits you from wearing union insignia to show your support
for the International Union, United Automobile, Aerospace and Agricultural Implement Workers
of America, AFL–CIO or any other labor organization.
WE WILL rescind a rule regarding Workday in response to protected concerted activity.
WE WILL, within 14 days from the date of the Board’s Order, offer Richard Ortiz full
reinstatement to his former job, and if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority rights or any other rights or privileges previously
enjoyed.
WE WILL make Richard Ortiz whole for any loss of earnings and other benefits resulting from
his termination, less any net interim earnings, plus interest, and WE WILL make him whole for
reasonable search-for-work and interim employment expenses, plus interest.
WE WILL within compensate Richard Ortiz for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region
32, within 21 days of the date the amount of backpay is fixed, either by agreement or Board
order, a report allocating the backpay award to the appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful termination and discipline of Richard Ortiz and Jose Moran, and WE
WILL, within 3 days thereafter, notify them in writing that we have done so and that we will not
use the termination and discipline against them in any way.
JD(SF)–33–19
TESLA, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Oakland Federal Building
1301 Clay Street
Suite 300-N
Oakland, CA 94612-5211
(510) 637-3300, Hours of Operation: 8:30 a.m. to 5:00 p.m.
The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/32-CA-
197020 or by using the QR code below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E.,
Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (510) 671-3034.