By Jonathan Stempel
(Reuters) – A federal appeals court on Friday said it will reconsider its recent decision that Tesla Chief Executive Elon Musk violated federal labor law by tweeting that employees would lose stock options if they joined a union.
The 5th U.S. Circuit Court of Appeals in New Orleans granted Tesla’s request to revisit the case “en banc,” meaning that its 16 active judges will take part.
A three-judge panel of the same court had in March upheld a National Labor Relations Board 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.
Musk issued the tweet as the United Auto Workers sought 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?”
The appeals court panel found “substantial evidence” that the tweet was “an implied threat to end stock options as retaliation for unionization.”
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.
The NLRB did not immediately respond to requests for comment. Tesla and its lawyers did not immediately respond to similar requests.
A decision is unlikely before 2024.
Twelve of the appeals court’s 16 active judges were appointed by Republican presidents.
Musk’s use of Twitter has caused him trouble before, including when he tweeted in August 2018 about having “funding secured” to take Tesla private.
Musk did not, and he and Tesla each paid $20 million civil fines to settle a subsequent U.S. Securities and Exchange Commission lawsuit.
Musk’s $236.4 billion fortune makes him the world’s second-richest person, according to Forbes magazine. He bought Twitter in October for $44 billion.
(Reporting by Jonathan Stempel in New York; editing by Jonathan Oatis and Deepa Babington)
