Tesla Gets Second Shot at Labor Board Ruling on Elon Musk Tweet

Tesla Inc. won another chance to challenge an NLRB decision that CEO Elon Musk illegally threatened workers by tweeting that they would lose stock options if they unionized.

The US Court of Appeals for the Fifth Circuit July 21 granted Tesla’s request for a rehearing en banc. The company asked the full appeals court to consider the case after three-judge panel in May upheld the National Labor Relations Board’s ruling.

The NLRB ordered Tesla in March 2022 to direct Musk to delete the offending tweet, which was first posted in May 2018. The company hasn’t taken down the tweet as it fights the board’s order in court.

The company sought the rehearing partly based on the panel’s deferential review of the NLRB’s holding, which turned on whether the board had substantial evidence to conclude that a worker would view the tweet as a threat.

Tesla argued that US Supreme Court and Fifth Circuit precedent forbids deference to a factfinder’s judgment that the speech at issue wasn’t protected by the First Amendment.

Musk, who bought Twitter Inc. last fall, has gotten into hot water with other federal agencies over his statements on the social media site.

The Second Circuit earlier this year rejected his challenge to a 2018 agreement with the US Securities and Exchange Commission that required the screening of his Tesla-related tweets.

The case is Tesla v. NLRB, 5th Cir., No. 21-60285, en banc rehearing granted 7/21/23.