NLRB Cannot Order Elon Musk to Delete Possibly Unlawful Tweet.

The U.S. Court of Appeals for the Fifth Circuit vacated the National Labor Relations Board’s order that Tesla CEO Elon Musk’s tweet, which the Board had found to be an unlawful threat of retaliation against union activity, should be deleted. Rather, the Fifth Circuit found that the Board exceeded its authority in ordering deletion of the tweet, even if the tweet violated the National Labor Relations Act.

In Tesla v. NLRB, during a union organizing campaign, Musk and an employee exchanged words over Twitter in which Musk asserted that workers would “give up stock options” if they unionized. The United Auto Workers union filed an unfair labor practice charge, alleging that the tweet was a threat to rescind stock options in violation of the National Labor Relations Act. The Board agreed and ordered Musk to delete his tweet.

On appeal, the en banc Fifth Circuit (meaning all the judges on the court, rather than the usual panel of three) issued a divided opinion in which the majority assumed without deciding both that the NLRA applies to speech on twitter and that Musk’s tweet violated the NLRA. But it found that Musk’s tweets were constitutionally protected free speech under the First Amendment, and that “[d]eleting the speech of private citizens on topics of public concern is not a remedy traditionally countenanced by American law.” Rather, under the First Amendment, the remedy of deletion applies only to communications that are “not speech at all” (emphasis in original), and that the appropriate remedy is “by punishing the speaker for the wrongful speech, rather than destroying the communication.” Thus, according to the Fifth Circuit majority, the Board did not have the authority to order Musk to delete his tweet. (We note that there was a vigorous dissent that would have upheld the deletion order).

This is an interesting case in that it acknowledges an employer’s right to free speech – but employers should not feel emboldened to say whatever they wish in the context of a union organizing campaign. Although the speech itself may be protected, the speaker is not insulated from the consequences of such speech, and the NLRB may order remedies other than deletion. And employers should definitely remember that, under Cemex, which we discussed in our August 28, 2023 E-lert, if an unfair labor practice is committed following a union demand for recognition, one such remedy may be an order from the Board to bargain with the union even without a union vote.