A lawyer for Tesla told a US appeals court on Wednesday that a 2018 tweet by chief executive Elon Musk suggesting factory workers would lose stock options if they unionized was not an unlawful threat, because it simply reflected the position of the union.
The tweet came amid the United Auto Workers (UAW) union’s years-long campaign to organize workers at Tesla’s factory in Fremont, California. It said: “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?”
Two days after the initial tweet, Musk said in a separate Twitter thread that it was the UAW, and not the company, that opposed stock options.
In March, Tesla appealed an order by the National Labor Relations Board (NLRB) that Musk delete the tweet. According to a judge, the labor board wasn’t “completely out of line,” as Musk’s tweet could be interpreted as a message that “the price you will have to pay if you unionize is you’ll give up your stock options.”
Tesla attorney David Salmons told the hearing on Wednesday that the constitutional right to free speech under the First Amendment “protects an employer’s robust speech about the downsides to unionization.” Taken in context, the tweet is really a “statement about what the union, not the company, will or will not do,” he said.
Meanwhile, a lawyer representing UAW, Daniel Curry, argued to the panel that Musk’s tweet was “a threat of retaliation, not a lawful expression of opinion.” The subsequent message only sowed further confusion, Curry said, adding: “The idea they’re putting out there that a union could take away an employee’s stock options just doesn’t fit with reality.”
Curry also pointed out that Musk’s history of making major announcements and controversial statements on social media would reasonably lead Tesla workers to take him at his word. “That is how Musk uses Twitter. Just like a press release,” he said.
Musk has a long history of controversial tweets, which has led to lawsuits. Tesla is facing a suit from investors over another 2018 post by the CEO, in which he said funding was secured to take the company private. In another case, a British cave explorer unsuccessfully sued Musk for calling him a “pedo guy” on Twitter.
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