Tesla Inc. has won an appeal in the US Court of Appeals for the Fifth Circuit, overturning a National Labor Relations Board (NLRB) decision that CEO Elon Musk’s tweet threatening the loss of stock options for workers who unionized was illegal under federal labor law.
The en banc panel of the court, in a 9-8 decision, held that Musk’s tweet was protected by the First Amendment of the US Constitution. The decision is a setback to the NLRB’s authority to enforce labor law’s prohibitions on employers’ coercive anti-union statements, especially on social media.
The NLRB had previously found that the tweet violated the National Labor Relations Act and ordered Tesla to delete it. A three-judge panel of the Fifth Circuit had upheld the NLRB’s decision, but the company was granted an en banc rehearing, which led to the latest ruling.
The majority held that the NLRB erred in ordering the deletion of Musk’s tweet as a remedy for unfair labor practices. The majority opinion stated that this alone was enough to vacate the NLRB’s order, and therefore, the court did not reach the merits of whether the tweet constituted an NLRA violation.
All the judges in the majority were Republican appointees, including Judge Cory Wilson, who had previously ruled in favor of the NLRB. The eight dissenting judges included two Republican appointees.
Tesla was represented by Morgan, Lewis & Bockius, LLP, while agency lawyers represented the NLRB.
The decision follows a similar ruling in 2022 by an all-GOP panel of the Third Circuit, which overturned the NLRB’s finding that a conservative online magazine publisher violated federal labor law via tweet.
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