Tesla, Inc., 375 NLRB No. 63, 03-CA-312352 (Published Board Decision)
The Board upheld the dismissal of a complaint alleging that Tesla’s Acceptable Use Policy for Workplace Technology unlawfully restricted employees’ rights under the NLRA. The case centered on two versions of the policy, issued in February and September 2023, which limited recording of meetings, use of email and messaging systems, handling of confidential business information, and creation of communication channels using company equipment.
The General Counsel argued the policies should be evaluated under the standard set in Stericycle, Inc., which presumes a work rule unlawful if it has a reasonable tendency to chill employees’ exercise of their rights, unless the employer shows the rule serves a legitimate, narrowly tailored business purpose. The Board instead applied Caesars Entertainment, which allows employers to restrict nonbusiness use of their IT resources unless employees are shown to lack other reasonable means of communicating, or unless the employer applied the rule in a discriminatory way. The Board noted that it has since confirmed in Pro Residential Services, Inc. that rules governing use of company equipment and electronic communication resources fall under Caesars Entertainment, not Stericycle.
The General Counsel contended that because Tesla’s policies went beyond regulating IT equipment and also covered handling of “Tesla Business Information,” including restrictions on downloading or forwarding information to personal devices, the rules should be split apart and analyzed differently. The administrative law judge rejected that approach, reasoning that the IT and business information provisions were integrated into a single workplace policy and that any transfer of information to a personal device necessarily involves use of company equipment, making it impossible to separate the two protections. The judge also found that the categories of information described as confidential or proprietary could not reasonably be understood by employees to include their rights to discuss wages or working conditions.
Because the General Counsel did not show that the policies were applied in a discriminatory manner or that employees lacked alternative means of communication, the judge concluded the rules were lawful and dismissed the complaint. On review, the Board affirmed that outcome. Two members noted they were not passing on whether Stericycle was correctly decided but found it did not apply here, and all three said they would be open to revisiting the underlying precedent in a future case. The Board did not address Tesla’s cross-exceptions arguing that portions of the NLRA are unconstitutional, since the dismissal made that question unnecessary to reach.
Significant Cases Cited
Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019): Held that employers may restrict nonbusiness use of IT resources absent proof employees lack other reasonable means of communication or proof of discriminatory enforcement.
Stericycle, Inc., 372 NLRB No. 113 (2023): Established that a work rule is presumptively unlawful if it has a reasonable tendency to chill Section 7 rights, rebuttable by showing a narrowly tailored legitimate business interest.
Purple Communications, 361 NLRB 1050 (2014): Previously held employees generally have a right to use employer email systems for Section 7 activity, later overturned by Caesars Entertainment.
Pro Residential Services, Inc., 373 NLRB No. 100 (2024): Confirmed that rules restricting use of company equipment and electronic communication resources are analyzed under Caesars Entertainment rather than Stericycle.
Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014): Held that the party asserting an affirmative defense bears the burden of proving it.
Hiller LLC, 375 NLRB No. 64, 10-CA-393487 (Published Board Decision)
The Board granted summary judgment against a plumbing, HVAC, and electrical services company that refused to bargain with a union after it was certified as the exclusive representative of a unit of plumbers and apprentices in Bowling Green, Kentucky.
The company had argued that the certification was invalid because the bargaining unit improperly included a Plumbing Service Team Leader it considered a supervisor, and therefore exempt from the NLRA's coverage. But the Board found this issue had already been fully litigated in the underlying representation case: a regional director had held a hearing on the employee's status, ruled that the company failed to prove the team leader was a supervisor, and the Board had already denied the company's request for review of that decision. Because the company offered no newly discovered evidence or special circumstances justifying a second look, the Board held the supervisory-status question could not be relitigated in this unfair labor practice proceeding, citing Pittsburgh Plate Glass Co. v. NLRB.
Since the company admitted it refused the union's bargaining request, that admission alone established a violation of Section 8(a)(5) and (1) of the NLRA. The Board ordered the company to bargain with the union on request and to post a remedial notice to employees.
Member Prouty wrote separately, reiterating his view from a dissent in another case that test-of-certification refusal-to-bargain cases call for additional remedies beyond the standard bargaining order, including make-whole relief for economic harm, union access to the workplace, a bargaining schedule, and notice-reading requirements.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Representation issues that were or could have been litigated in a prior representation proceeding cannot be relitigated in a subsequent unfair labor practice case absent newly discovered evidence or special circumstances.
Randalls Food & Drug, L.P., 369 NLRB No. 100 (2020): An employer's admission that it refused to bargain is sufficient to establish a violation of the Act.
Mar-Jac Poultry Co., 136 NLRB 785 (1962): The one-year certification period begins running only once the employer actually begins bargaining in good faith.
Longmont United Hospital, 374 NLRB No. 52 (2026): Source of Member Prouty's dissenting view that additional remedies are warranted in test-of-certification refusal-to-bargain cases.
CP Anchorage Hotel 2 d/b/a Hilton Anchorage, 371 NLRB No. 151 (2022): Member Prouty's concurrence arguing notice reading and distribution should be a standard remedy for all unfair labor practices found by the Board.