Free speech is having a moment. Not since my kids were young and tried to claim free speech rights against each other (fill in the blanks) have I heard so many claims of free speech. In the workplace, freedom of speech is not guaranteed of course. A prominent example of free speech limits are those specific to union organizing under the National Labor Relations Act. So what happens when a billionaire employer sends an anti-union tweet when one of his facilities is organizing? The NLRB ordered its deletion. This week, the Appeals Court overturned that decision in a rebuke to the NLRB and a victory for Elon Musk.
WHAT HAPPENED? The IAW had been trying to organize a union at a plant in California in 2017. In May 2018, Musk posted on Twitter that Tesla workers would lose stock options if they joined a union. The union filed a complaint and ultimately the NLRB agreed, ordering Musk to delete the tweet. On appeal, three judges upheld the NLRB. Musk challenged the panel’s ruling to the full court. In a 9-8 decision, the court of the 5th Circuit (which constitutes Texas, Louisiana and Mississippi) held the NLRB had exceeded its authority and the tweets are “constitutionally protected speech.”
CAN I TRY THAT? Your mileage on anti union messaging may differ significantly. Musk had a few things in his favor: a deep pocket for appeals and a company based in Texas, which brought him before the 5th circuit–a notoriously employer friendly court. If the claim had to be fought in CA where the plant was, the result could have been different.
WHAT CAN I SAY DURING A UNION CAMPAIGN? The timing and content of your messaging can be a bit tricky in most parts of the country for most employers. You should get your message out and keep employees fully informed. We can help. Contact us.