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Elon Musk and His Anti-Union Tweet: NLRB Rules Explained

March 29, 2021, 8:09 PM

What do Tesla Inc., Barstool Sports, and The Federalist have in common? They’ve all been dinged by the National Labor Relations Board after tweeting anti-union comments.

The NLRB’s ruling against Tesla CEO Elon Musk’s tweet was one part of a decision against the company last week for unlawful union-busting conduct at its facility in Fremont, Calif.

The NLRB directed Tesla to delete Musk’s offending post on Twitter. This wasn’t the first time the agency has used this remedy. The board handed down the same sanction in November in a case involving the conservative online magazine, The Federalist. The agency also included a delete-the-tweets directive in a settlement with Barstool Sports last January.

1. What did the executives say in their tweets?

All three cases involved claims—or outright threats—related to worker efforts to form unions.

Musk suggested Tesla workers would lose out on company stock options if they unionized. Ben Domenech, publisher of The Federalist, warned that he’d send workers “back to the salt mine” if they joined a union. Barstool Sports co-founder David Portnoy threatened to fire and sue workers who reached out to union lawyers.

2. Why did those tweets violate the law?

The National Labor Relations Act, which the NLRB administers, gives employees in the private sector the right to form unions. It also generally protects workers who jointly attempt to improve the workplace, regardless of whether that involves a union. The statute specifically prohibits employers from preventing or disrupting the exercise of those rights.

To determine if a company violated that section of the NLRA, the board examines whether the firm’s statements or conduct would have a reasonable tendency to interfere with, restrain, or coerce employees’ rights to form a union or otherwise band together for mutual aid. That legal test doesn’t turn on the employer’s motive or if it successfully obstructed the workers’ organizing rights.

3. Do the companies have any recourse?

NLRB rulings can be appealed to federal circuit court. Judges generally review board decisions with a high degree of deference, primarily looking for adequate explanations, evidence to support conclusions, and any abuse of discretion on the board’s part.

FDRLST Media, the company that operates The Federalist, has challenged the NLRB’s decision in the Philadelphia-based U.S. Court of Appeals for the Third Circuit. The company raised several arguments, including that Domenech’s tweet was satire protected by the First Amendment.

4. What about Amazon’s recent tweets?

One of Amazon.com Inc.’s accounts on Twitter, @amazonnews, published some aggressive posts in connection with the ongoing union election at the company’s fulfillment center in Bessemer, Ala. But those tweets mainly targeted lawmakers and other critics, such as Sen. Elizabeth Warren (D-Mass.) and Mark Pocan (D-Wis.), rather than making comments about unionizing like those in the Tesla, Barstool Sports, and FDRLST Media cases.

5. Has the NLRB said anything about worker tweets?

The NLRB has given companies latitude to restrict what their workers can say on social media. The board in January upheld a California ambulance company’s social media policy prohibiting employees from disparaging the company and others, carrying out “inappropriate communications,” disclosing confidential information, posting photos of coworkers, or using the company logo to denigrate people or causes.

To learn more:

— From Bloomberg Law

The Federalist Publisher’s Tweet Violated Labor Law, NLRB Rules

Barstool Sports Settles With Labor Board Over Anti-Union Tweets

California Ambulance Firm’s Social Media Rules Lawful: NLRB (1)

— From Bloomberg News

Tesla Is Ordered to Rehire Worker, Make Musk Delete Tweet (3)

Elon Musk Did Something Somewhat Rare for Him: Delete a Tweet

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jo-el J. Meyer at jmeyer@bloombergindustry.com

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