Group says NLRB ruling over Musk tweet ignored free-speech rights

A conservative legal group on Wednesday urged a U.S. appeals court to overturn a National Labor Relations Board decision that said Tesla Inc chief executive Elon Musk violated federal labor law by tweeting that employees would lose stock options if they joined a union.

The New Civil Liberties Alliance in an amicus brief told the 5th U.S. Circuit Court of Appeals that the NLRB’s March order directing Tesla to require Musk to delete the 2018 tweet was part of a shift at the agency toward disregarding employers’ free-speech rights and ignoring the context around allegedly coercive statements.

The NCLA represents the publisher of conservative news website The Federalist in a separate case in which the NLRB said his tweet that he would send workers “to the salt mine” if they unionized was unlawful.

The group in its amicus brief said the board in deciding Tesla’s case improperly relied on that flawed decision, which has been appealed to the 3rd Circuit.

“The (National Labor Relations Act) does not operate as a special exception to the First Amendment’s broad-ranging protections for speech,” NCLA lawyers wrote.

San Carlos, California-based Tesla and its lawyers at Morgan Lewis & Bockius did not immediately respond to requests for comment. Nor did the NLRB and the United Auto Workers union, which has intervened in the case to defend the board’s decision.

Tesla is also backed in the case by the U.S. Chamber of Commerce, which said in a brief filed last week that the NLRB ruling “represents a chilling expansion of Board authority over speech on matters of public importance outside the workplace on social media.”

Musk in the 2018 tweet wrote: “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?”

The UAW, which was working to organize workers at Tesla’s Fremont, California, plant, filed a complaint with the NLRB claiming Musk’s comments amounted to unlawful coercion in violation of the NLRA.

An NLRB administrative law judge in 2019 sided with the union, and Tesla appealed to the board.

While the case was pending, the NLRB last November decided the case involving The Federalist. The board rejected the publisher’s claim that his “salt mine” tweet was a joke, and said it could discourage the website’s employees from joining a union.

The board then took up Tesla’s case, ruling in March that in light of the decision involving The Federalist, Musk’s tweet was also unlawfully coercive.

But the NCLA on Wednesday said the board had ignored decades of U.S. Supreme Court precedent and its own decisions requiring the agency to consider the context of statements by management, and whether they were meant to be coercive, when determining if they are illegal.

“Under the Board’s interpretation … employer speech can be deemed an ‘unfair labor practice’ in the absence of improper motive and other contextual prerequisites of a true threat,” the group said.

The case is Tesla Inc v. NLRB, 5th U.S. Circuit Court of Appeals, No. 21-60285.

For Tesla: David Salmons of Morgan Lewis & Bockius

For the NLRB: Ruth Burdick

For the UAW: Margo Feinberg of Schwartz Steinsapir Dohrmann & Sommers

Read more:

Publisher’s Twitter threat to send workers ‘back to the salt mine’ was unlawful- NLRB

Federalist’s publisher says satirical ‘salt mine’ tweet didn’t violate NLRA

Tesla CEO Musk’s anti-union tweet from 2018 must be deleted-U.S. labor board