Lawyers for Tesla have asked a federal appeals court to reconsider its ruling that CEO Elon Musk unlawfully threatened employees with a loss of stock options in a 2018 Twitter post amid a union organizing effort.
Three judges on the 5th U.S. Circuit Court of Appeals in New Orleans, in a March ruling, upheld a National Labor Relations Board order that the tweet be deleted. The panel also upheld an order that a fired Tesla employee be rehired with back pay.
The case arose from United Auto Workers’ organizing efforts at a Tesla facility in Fremont, California.
Tesla attorneys want the full 17-member court to rehear the case. The panel ruling, they argue in a Monday evening filing, conflicts 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.
Musk tweeted on May 20, 2018: “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.”
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.”
It is unclear when the full court would vote on whether to rehear the case. The judges on the panel that ruled in March were James Dennis, nominated to the court by former President Bill Clinton; Leslie Southwick, nominated by former President George H.W. Bush; and Cory Wilson, nominated by former President Donald Trump.
