Threat or not? Elon Musk gets new hearing on tweet about Tesla workers’ stock options

Three judges on the 5th U.S. Circuit Court of Appeals in New Orleans upheld a National Labor Relations Board order to delete the tweet. The panel also upheld an order to rehire a fired Tesla employee, with back pay.

But Friday’s brief order says a majority of the court’s full-time judges have voted to hear the matter again – this time before the full court. The March ruling was vacated – snatching away, at least for now, a UAW legal victory.

The case arose amid UAW organizing efforts at a Tesla facility in Fremont, California, and years before Musk bought the platform in 2022.

On May 20, 2018, Musk tweeted: “Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted. But why pay union dues and give up stock options for nothing? Our safety record is 2X better than when plant was UAW & everybody already gets healthcare.”

The 5th Circuit panel ruled in March that “substantial evidence supports the NLRB’s conclusion that the tweet is as an implied threat to end stock options as retaliation for unionization.”

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The panel also said there was evidence that the terminated employee “was fired for lying about protected union activity and not related to his job performance or Tesla’s legitimate business interests or workplace rules.” The 5th Circuit currently has 16 full-time judges and one vacancy, pending Senate confirmation of a judge nominated by President Joe Biden.

In March, the judges that ruled on the panel were James Dennis, who was nominated to the court by former President Bill Clinton and now has part-time senior status; Leslie Southwick, nominated by former President George H.W. Bush; and Cory Wilson, nominated by former President Donald Trump.

A UAW spokesperson did not immediately respond Friday afternoon to an email query.

Tesla attorneys have argued that the March panel decision conflicted with Supreme Court and appellate court precedents regarding First Amendment free speech protections. And they said the employee in the case was properly fired for giving false information during an investigation of employee harassment.