Beth Nakamura/The Oregonian via AP
United Auto Workers members at Chrysler Parts Distribution Center in Beaverton, Oregon, picketed with striking workers at auto manufacturing plants, September 22, 2023.
Last week, the United Auto Workers announced an unprecedented organizing effort at 13 non-union auto manufacturing operations in the United States. This attempts to build on the union’s success in winning favorable contracts with the Big Three automakers (Ford, GM, and Stellantis), which has already led to wage increases at non-union plants.
Winning in facilities, particularly in the South, where the UAW has failed multiple times in the past would be a triumphant vindication of the aggressiveness of new union president Shawn Fain and his leadership team. It would signal a true resurgence for the labor movement, with 150,000 workers potentially at stake. And organizing is already under way.
But as the UAW is surely aware, there’s a big difference between earning a new contract at an established union company and starting from scratch. The latter bumps up against significant barriers inherent in U.S. labor law, where even when the system works, the wheels of justice turn too late to make meaningful change in the workplace.
In fact, there’s a perfect example of this left over from one of the last major UAW organizing efforts at a non-union automaker.
Richard Ortiz, who was a production associate at Tesla’s plant in Fremont, California, was fired for protected union activity in October of 2017. Every administrative body that has looked at the case, including the most conservative court of appeals in the nation, has ruled in Ortiz’s favor. Yet he still doesn’t have his job, more than six years later.
The case shows how a persistent, aggressive employer that doesn’t want a union can frustrate collective bargaining by flagrantly violating labor law, and trusting that resulting minuscule penalties and especially the glacial slowness of the legal system will let them win in the end. “It’s standard operating procedure to delay as long as possible,” said Nelson Lichtenstein, labor expert and professor at the University of California, Santa Barbara. “It doesn’t matter if they win or lose.”
I first interviewed Ortiz in early 2017, when the UAW was first attempting to organize the Tesla Fremont plant. He actually worked at the plant for 22 years when it was co-managed by Toyota and General Motors in an innovative joint venture called New United Motor Manufacturing Incorporated (NUMMI) that used Japanese production techniques. Tesla purchased the NUMMI plant in 2010, and Ortiz came out of retirement to join the new electric-vehicle team, assembling hoods and doors.
“I have an eight-pound rivnut gun,” Ortiz told me at the time, referring to a tool that installs rivet nuts. “I’m doing that all day long. I’m to the point where, if I pick something up with any weight, within 30 seconds I have to drop it. That scares me, I want to be able to use my arm when I retire.”
He was a proud Tesla worker, wearing his gear at all times, including for our interview. But he wanted dignity at work: better hours, greater attention to safety, higher wages instead of stock options that take four years to vest, and a voice on the job.
Winning in facilities, particularly in the South, where the UAW has failed multiple times in the past would signal a true resurgence for the labor movement.
The organizing effort went public when one worker wrote a Medium post about what life on the assembly line was like. Elon Musk responded not with promises to meet worker demands, but by vowing to throw “a really amazing party” for the launch of the Model 3, and install “free frozen yogurt stands” and “a Tesla electric pod car roller coaster” connecting the facility’s parking lots. “It’s going to get crazy good,” Musk concluded.
The roller coaster wasn’t built. And Ortiz, along with his fellow organizers, faced retaliation for handing out union flyers to colleagues and wearing UAW T-shirts to work. He was demoted from his position on the assembly line, “coercively interrogated” on three occasions by managers, and eventually fired along with hundreds of other workers in October 2017.
Ortiz and the UAW alleged that the mass firing, which Tesla claimed was based on performance, was an unfair labor practice intended to replace vocal pro-union workers with temps, and filed a claim with the National Labor Relations Board. Tesla never made the negative reviews that were supposed to be the basis for the firings available.
At that point in 2017, Donald Trump’s pro-corporate NLRB had little interest in acting precipitously on the case. It languished for three and a half years, working through regional administrative panels and up the chain to the board. Finally, in March 2021, the board ruled that Ortiz was illegally fired and had to be able to return to work; two Trump-appointed Republicans joined one Democrat in the decision. As part of the ruling, Musk was also supposed to delete a tweet insinuating that workers would lose stock options if they voted in a union.
Of course, the “penalty” for this violation is paltry: The worker gets back pay, less whatever wages he earned in the meantime while not working for the company that engaged in the illegal firing. While the NLRB today is trying to add additional compensation, like housing or transportation costs, that reflect the real loss of a job, in reality it costs a company next to nothing to fire union organizers.
Moreover, the NLRB ruling didn’t end Ortiz’s ordeal. Tesla appealed, not to the Ninth Circuit Court in California where Ortiz worked, but the Fifth Circuit, which includes Texas, where some Tesla headquarters are located. (Some labor experts told the Prospect this was rather unusual.) The Fifth Circuit, of course, is notoriously conservative and subsequently anti-union. Tesla has appealed other NLRB rulings to the Fifth Circuit as well, in one case successfully, as the court ruled the company’s uniform policy, which bars union insignias, is lawful.
But even this very conservative court ruled in Ortiz’s favor. In March of this year, a three-judge panel—including Clinton, George W. Bush, and Trump appointees—ruled that the nominal reason for firing Ortiz, which involved his posting screenshots of a co-worker on a private Facebook group (the co-worker, who was not a union supporter, claimed it was harassment), was protected union activity not related to his job performance, and that the firing was motivated by animus.
Amazingly, that is not the end of this saga. Tesla petitioned to have the Fifth Circuit rehear the case en banc, with all of its judges present. That was agreed to by the court in July, and an en banc hearing has not yet been scheduled. So as we hit December 2023, Ortiz remains out of his job from which Tesla fired him, by all accounts illegally, in October 2017. And the anti-union tweet is still up.
“It’s a problem with the framework that we do this work in,” said Larry Cohen, former president of the Communications Workers of America. “He’s won at every step and he’s not back.”
The lack of speed to rectify illegal union busting, and the way in which corporations can just drag out cases to gain the benefits of blocking union momentum while avoiding the (meager) consequences, presents a structural hurdle, particularly to organizing new workplaces. Lichtenstein added another complication: Because the NLRB is aware that most of their rulings will be appealed, they spend a lot of time trying to make them bulletproof for appellate courts. That caution eats up more time and is beneficial to management.
Biden’s NLRB has sought other options to bring union busting to heel, Lichtenstein noted. “In the last two years, there have been memoranda of agreement between the NLRB, the Federal Trade Commission, and the Antitrust Division of the DOJ,” he said. “If you get a situation where some company finds its merger being threatened because it didn’t follow the labor law, you’ve got a club you can use.” Lichtenstein cited a deal made between A&P, the dominant grocery chain in the 1930s, and the United Food and Commercial Workers, which traded union recognition for easing off antitrust scrutiny. “That’s why UFCW today is a union of a million members,” said Lichtenstein.
But that only works if other agencies have something to give that Tesla or other automakers need. Musk isn’t gobbling up competitors at the moment, but he has shown total antipathy toward anything approaching union activity at his factories. Ortiz certainly isn’t the only pro-union worker who has been fired by Tesla; in February, Workers United filed an unfair labor practice over firings at a Buffalo-area plant that works on the company’s driver assist technology.
“When you have the head of the company who is the founder, the proprietary capitalist,” Lichtenstein said, citing Musk, Starbucks CEO Howard Schultz, and former Amazon CEO Jeff Bezos, “they see a union challenge as a personal affront.” The law helps them fight those affronts, and this means the biggest organizing effort from a union in decades faces a huge uphill battle.
The high-profile, successful actions by the UAW in the Big Three strikes gave them a lot of goodwill among autoworkers and the public. But the law really is on the side of the companies. That will come into play during organizing, then later if a union election has to be held, and even after that amid the often-interminable bargaining for a first contract. And these barriers are of course critical to the fight to ensure that electric-vehicle jobs are good jobs. If large parts of the sector are not unionized, that could depress wages and work conditions for everyone. “While Musk and his colleagues are rushing to the EV future, they’re trying to drag us back to a robber baron past where bosses call the shots and workers are treated as costs to be minimized,” Ortiz wrote in 2021.
Because Ortiz remains in litigation in the case, the UAW declined to make him available for comment. In 2021, after the initial NLRB ruling, Ortiz did write about and speak on camera about his situation. “They fired me because I tried to improve the lives of my coworkers and myself,” he told More Perfect Union. “We were there to make [Musk] famous. It’s all about him. What are we? Disposable.”
