5th Circuit Rules that NLRB Erred in Ordering Musk to Delete Anti-Union Tweet

December 30, 2024
Hall Benefits Law, LLC

The U.S. Court of Appeals for the Fifth Circuit has vacated a National Labor Relations Board (NLRB) decision that forced Elon Musk to delete a 2018 anti-union tweet. The NLRB found that Musk’s tweet, which focused on the potentially negative consequences of Tesla workers unionizing, was an unlawful threat under Section 8(c) of the National Labor Relations Act (NLRA).

A three-judge panel of the Fifth Circuit upheld the NLRB’s decision in 2023. However, a few months later, a majority of the Court’s judges granted the company’s request for a hearing en banc. According to the en banc panel, Musk’s tweet was free speech protected by the First Amendment of the U.S. Constitution and, therefore, an inappropriate remedy for unfair labor practices. Therefore, the panel did not reach the question of whether the tweet was a violation of the NLRA.

This case is indicative of the NLRB’s efforts to crack down on CEO speech that it considers threatening to union workers. For instance, the NLRB recently ruled that Starbucks interim CEO Howard Schultz violated the NRLA by advising a worker that they could work elsewhere if they were unhappy working for the company. According to a statement from Starbucks, Schultz’s words reflected that at-will employment allows the company to “foster a workforce that contributes positively to its mission” so long as it violates no labor laws.

Furthermore, the NLRB ruled earlier this year that Amazon CEO Andy Jassy’s comments about unions also were unlawful. Jassy’s comments included statements about how he believed that Amazon workers were better off not unionizing. Critics see the decision as an infringement of the First Amendment and Section 8(c) of the NLRA, which allows managers to state their opinions about unionization and workplace culture within limits. More specifically, Section 8(c) states that managers who express views, opinions, or arguments do not commit unfair labor practices if their expressions contain no threats or promise any benefit.

HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and H.R./employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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