Court takes new look at whether Musk post illegally threatened workers with loss of stock options

NEW ORLEANS — A group of federal appeals court judges in New Orleans is deciding whether a 2018 Twitter post by Tesla CEO Elon Musk unlawfully threatened Tesla employees with the loss of stock options if they decided to be represented by a union.

The National Labor Relations Board said it was an illegal threat. Three judges on the 5th U.S. Circuit Court of Appeals in New Orleans upheld that decision, as well as a related NLRB order that Tesla rehire a fired employee, with back pay.

But the full 5th Circuit later threw out that decision and voted to hear the matter again, resulting in a hearing Thursday before a panel of 17 judges. Attorneys for Tesla, the NLRB and the union grappled with questions including whether the post counted as a threat to workers because it appeared in a public discussion on his personal account and not in the workplace or on a Tesla forum.

“It's not in the workplace,” Judge Cory Wilson said as he questioned union attorney Daniel Curry.

“It's still getting to the workers,” Curry responded.

The judges gave no indication when they would rule.

The case involved a post made during United Auto Workers organizing efforts at a Tesla facility in Fremont, California. The post was made years before Musk bought the platform, now known as X, in 2022.

On May 20, 2018, Musk tweeted: “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.”