Musk tweet on union campaign not illegal threat, says Tesla lawyer

3 minute read

Tesla Chief Executive Office Elon Musk speaks at his company's factory in Fremont, California, June 22, 2012. REUTERS/Noah Berger

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  • NLRB found reasonable employees would take tweet as threat of reprisal
  • In oral arguments, Tesla says Musk was merely explaining union's position
  • The Tesla CEO has long history of controversial tweets

(Reuters) - A lawyer for Tesla Inc told a U.S. appeals court on Wednesday that a tweet by chief executive Elon Musk suggesting factory workers would lose stock options if they unionized was not an unlawful threat, because it simply reflected the position of the union.

David Salmons of Morgan Lewis & Bockius told a panel of the 5th U.S. Circuit Court of Appeals that the National Labor Relations Board was wrong to find that Tesla employees would feel threatened by Musk's 2018 tweet: "Nothing stopping Tesla team at our car plant from voting union ... But why pay union dues & give up stock options for nothing?"

“What the board wants here is to punish any bare statement that unionization will cause lost benefits, no matter how accurately that statement predicts union bargaining behavior,” Salmons said.

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The case is one of several triggered by Musk's prolific tweeting. Tesla is facing a lawsuit from investors over Musk's 2018 tweet saying funding was secured to take the company private, and a British cave explorer unsuccessfully sued Musk for calling him a "pedo guy" on Twitter.

Tesla is backed in Wednesday's case by the U.S. Chamber of Commerce, which said in an amicus brief last year that the NLRB failed to analyze Musk's comment in context and its decision trampled on employers' free-speech rights.

The tweet came amid the United Auto Workers union years-long campaign to organize workers at Tesla's Fremont, California, factory.

Two days after the initial tweet, Musk said in a separate Twitter thread that it was the UAW, and not the company, that opposed stock options.

The NLRB in a decision last year said Musk's tweet was illegal because a reasonable employee could construe it as a threat of reprisal for unionizing.

The UAW's lawyer, Daniel Curry of Schwartz Steinsapir Dohrmann & Sommers, told the 5th Circuit on Wednesday that the union does not categorically oppose stock options, and that Musk's subsequent comments did not go far enough in repudiating his initial tweet to remedy the violation.

Curry said Musk's history of making major announcements and controversial statements on social media would reasonably lead Tesla workers to take him at his word.

"That is how Musk uses Twitter," he said. "Just like a press release."

The case is Tesla Inc v. NLRB, 5th U.S. Circuit Court of Appeals, No. 21-60285.

For Tesla: David Salmons of Morgan Lewis & Bockius

For the NLRB: Micah Jost

For the UAW: Daniel Curry of Schwartz Steinsapir Dohrmann & Sommers

Read more:

Tesla CEO Musk's anti-union tweet from 2018 must be deleted-U.S. labor board

Group says NLRB ruling over Musk tweet ignored free-speech rights

Tesla boss Elon Musk wins defamation trial over his 'pedo guy' tweet

Musk defends Tesla going-private tweet in 2018 as 'truthful'

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.