Appeals Court Rules that NLRB Wrongly Silenced Musk

The National Labor Relations Board (NLRB) in 2021 wrongfully ordered Tesla CEO Elon Musk to delete a 2018 tweet about negative possible consequences should Tesla workers unionize, the 5th U.S. Circuit Court of Appeals ruled Oct. 25. We’ve gathered articles on the news from SHRM and other outlets.

Tweet Deemed Free Speech

In a 9-8 vote, the 5th Circuit threw out an NLRB order that found the tweet was an unlawful threat. The tweet amounted to free speech protected by the U.S. Constitution’s First Amendment, the court concluded. Representatives for Tesla and the NLRB declined to comment.

(Reuters)

Decision Made by 5th Circuit Panel

The decision from an en banc panel of the 5th Circuit came after a three-judge 5th Circuit panel in 2023 upheld the NLRB’s decision. But a majority of active-status judges granted the company’s request for an en banc rehearing by the full 5th Circuit a few months later.

“The NLRB erred in ordering the deletion of Musk’s speech as a remedy for unfair labor practices,” the majority said. “That alone is enough to vacate its order, so we do not reach the merits of whether the tweet constituted an NLRA [National Labor Relations Act] violation.”

(Bloomberg Law)

NLRB Targeted Former Starbucks CEO’s Comment

The NLRB has sought to clamp down on other CEO speech that it’s deemed threatening to union supporters. The NLRB recently ruled that former Starbucks interim CEO Howard Schultz violated the NLRA by telling a pro-union worker they could go work somewhere else if they were unhappy at Starbucks. In a statement, Starbucks said it disagreed with the board’s decision.

“At-will employment allows either party to end the relationship, as long as labor laws aren’t violated. Howard Schultz’s remarks reflect this principle: If an employee’s personal values or aspirations no longer align with the company’s, they have the right to seek employment elsewhere, just as the company has the right to foster a workforce that contributes positively to its mission,” said Emily M. Dickens, J.D., SHRM chief of staff, head of government affairs, and corporate secretary, in a statement.

(SHRM)

Amazon CEO’s Speech Case

In a separate case earlier this year, a San Francisco administrative law judge (ALJ) for the NLRB found Amazon CEO Andy Jassy’s comments about unions to be unlawful. Jassy’s comments included a statement that Amazon thinks employees are better off not unionizing for several reasons and a description of those reasons.

The NLRB ALJ’s ruling was an “extreme infringement” not just of the First Amendment but also of Section 8(c) of the NLRA, which gives management representatives broad leeway to state opinions about how they prefer to work with employees, said attorney Phil Wilson, president of LRI Consulting Services in Broken Arrow, Okla.

Section 8(c) provides that expressing any views, arguments, or opinions should not constitute an unfair labor practice if such expression contains no threat based on union activity and no promise to employees to induce them to forgo joining a union. Interrogations about union activity and surveillance of union organizing also are prohibited.

(SHRM)