"NEW ORLEANS (AP) — A federal appeals court, divided in its opinion, determined that a federal agency overstepped by demanding Tesla CEO Elon Musk remove a 2018 social media post that union leaders considered a threat to employee stock options.
This case centered around a tweet made on what was previously known as Twitter during organizing efforts by the United Auto Workers at a Tesla site in Fremont, California. The tweet was posted well before Musk acquired the platform, which has since been rebranded as X in 2022.
On May 20, 2018, Musk tweeted: “There’s nothing preventing Tesla employees at our factory from voting for a union. They could do it tomorrow if they so choose. But why pay union dues and lose stock options for no reason? Our safety record is twice as good as when the plant had UAW & everyone already has healthcare.”
The National Labor Relations Board classified it as an unlawful threat. Following Tesla's appeal, three judges from the 5th U.S. Circuit Court of Appeals in New Orleans upheld this ruling, along with an associated NLRB order requiring Tesla to reinstate a terminated employee, granting back
But Tesla sought a rehearing, and the full 5th Circuit later threw out the earlier decision and voted to hear the matter again. In an opinion dated Friday, the judges split 9-8 in favor of Tesla and Musk.
“We hold that Musk’s tweets are constitutionally protected speech and do not fall into the categories of unprotected communication like obscenity and perjury,” the unsigned opinion said.
The majority also found the NLRB must reconsider its order that the fired employee be reinstated, saying there was no proof that the person who fired the worker acted out of ill will toward the union.
The 11-page opinion was followed by a 30-page dissent on behalf of eight judges, written by Judge James Dennis.
“Relevant here, the Supreme Court has consistently held that the First Amendment does not protect threatening, coercive employer speech to employees in the labor organization election context— the precise category of speech Musk disseminated via Twitter,” Dennis wrote.
He also argued that the attitude of the supervisor who fired the worker was not relevant to whether he should be reinstated. The worker, Dennis wrote, “was fired for declining to divulge information about protected union activities during an interrogation.”
The ruling sent the case back to the NLRB for further action. It was not immediately clear if there would be an appeal to the U.S. Supreme Court.
The union didn’t respond to a question from The Associated Press asking about its next move. But on Tuesday night, President Shawn Fain cited the case in an online address to rally union members to vote and take part in the electoral process.
Musk, he said, has poured millions into Republican Donald Trump’s presidential campaign.
“It’s no coincidence that Elon Musk is one of the most anti-union auto CEOs in history, and he is buying elections to rig the law in his favor,” Fain said. “That’s what happens when the billionaire class makes the rules. And that’s what happens when working class people stay on the sidelines.”