5th Circuit Will Reconsider Ruling Against Elon Musk About His Tweet

​The full 5th U.S. Circuit Court of Appeals will rehear a 5th Circuit panel’s decision finding that a tweet by Elon Musk, CEO of Tesla Motors and owner of X Corp. (formerly known as Twitter), violated the National Labor Relations Act (NLRA). We’ve gathered articles on the news from SHRM Online and other media outlets.

Tweet Found to Violate NLRA

The United Auto Workers (UAW) persuaded the 5th Circuit panel that Musk violated the NLRA when he tweeted that employees might not continue to have stock options if the UAW became Tesla’s union.

(SHRM Online)

5th Circuit Panel Interpreted Tweet as a Threat

“[B]ecause stock options are part of Tesla’s employees’ compensation, and nothing in the tweet suggested that Tesla would be forced to end stock options or that the UAW would be the cause of giving up stock options, substantial evidence supports the NLRB’s [National Labor Relations Board’s] conclusion that the tweet is as an implied threat to end stock options as retaliation for unionization,” the appeals court panel said. “Moreover, the statement in the tweet is materially similar to other statements that the NLRB and our court have found to be threats.”

(Circuit Court Decision—March 31 opinion)

Tweet Hasn’t Been Deleted

The three-judge 5th Circuit panel upheld an NLRB order that Tesla make Musk delete the tweet. However, the company hasn’t taken down the tweet as it fights the board’s court order. The tweet from Musk states, “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.”

(Bloomberg)

Grounds for Reconsideration

In seeking reconsideration, Tesla cited free speech concerns and said the NLRB ignored that no employees claimed Musk was threatening them, Musk did not intend to threaten anyone and he later clarified his tweet was not a threat.

(Reuters)

Tweet Defended as Accurate

Last year, an attorney representing Tesla argued before the 5th Circuit panel that what the NLRB wanted “is to punish any bare statement that unionization will cause lost benefits, no matter how accurately that statement predicts union bargaining behavior.”

(Reuters)