US appeals court to reconsider decision on Elon Musk's 2018 anti-union tweet

Tesla argues Elon Musk's 2018 anti-union tweet is protected speech, the NLRB says different

Tesla CEO Elon Musk will have a second chance to prove in court that his anti-union tweet from 2018 was not an illegal threat. 

The 5th Circuit Court of Appeals in New Orleans has agreed to Telsa's request for an "en banc" review of its recent decision that Musk violated federal labor law by tweeting that employees would lose stock options if they joined a union. 

A three-judge panel of the same court had in March upheld a National Labor Relations Board (NLRB) ruling that Musk's May 20, 2018 tweet was an unlawful threat that could discourage unionization at his electric car company, and must be deleted.

Now the full 16-judge court will re-hear the case, 12 of whom are Republican appointees. 

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A mobile phone shows Elon Musk's Twitter account

Elon Musk Twitter account is seen on a mobile phone screen for illustartion photo. Krakow, Poland on July 15, 2023. A 2018 anti-union tweet landed Musk in court with the National Labor Relations Board.  (Beata Zawrzel/NurPhoto via Getty Images / Getty Images)

Musk posted the tweet in question back in 2018 when the United Auto Workers attempted to organize employees at Tesla's plant in Fremont, California. 

"Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted," he wrote. "But why pay union dues & give up stock options for nothing?"

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The appeals court panel said there was "substantial evidence" that the tweet was "an implied threat to end stock options as retaliation for unionization." 

UAW President Shawn Fain had applauded the decision but said it also highlights "our broken US labor law." 

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A charger with Tesla logo

A charger with Tesla logo at a Supercharger rapid battery charging station for the electric vehicle company Tesla Motors, in the Silicon Valley town of Mountain View, California, August 24, 2016.  ((Photo by Smith Collection/Gado/Getty Images) / Getty Images)

"Here is a company that clearly broke the law and yet it is several years down the road before these workers have achieved a modicum of justice," Fain said in March. 

In seeking reconsideration, Tesla cited free speech concerns, and said the NLRB ignored that no employees claimed that Musk was threatening them, that Musk did not intend to threaten anyone, and that Musk later clarified his tweet was not a threat.

NLRB did not immediately respond to Fox Business' request for comment. Tesla did not immediately respond to a similar request. 

The case is unlikely to be decided before 2024.

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Tesla CEO

Tesla Inc CEO Elon Musk walks next to a screen showing an image of Tesla Model 3 car during an opening ceremony for Tesla China-made Model Y program in Shanghai, China January 7, 2020.  (REUTERS/Aly Song//File Photo / Reuters Photos)

This isn't the first time Musk's tweets have gotten him into legal jeopardy. An August 2018 tweet in which he claimed to have "funding secured" to take Tesla private earned him a lawsuit from the U.S. Securities and Exchange Commission.

Musk did not have the funds he claimed and he and Tesla were forced to pay $20 million in civil fines to settle the matter. 

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But $20 million was a drop in the bucket for the billionaire, whose $236.4 billion fortune makes him the world's second-riches person, according to Forbes magazine. He purchased Twitter outright in October for $44 billion. 

Fox Business' Bradford Betz and Reuters contributed to this report.