The National Labor Relations Board (NLRB) recently declared that Elon Musk violated federal law with this tweet: “Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted. But why pay union dues & give up stock options for nothing? Our safety record is 2X better than when plant was UAW & everybody already gets healthcare.”
And the agency’s Twitter fixation appears to be a growing trend. Earlier this year, the NLRB also prosecuted The Federalist, a conservative online magazine, because its publisher, Ben Domenech, posted this tweet poking fun at Vox Media when it was dealing with labor walkouts: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”
The agency’s henpecking over social media commentary reeks of viewpoint discrimination and will tilt public debate on labor policy toward unions.
According to the NLRB, these brief snippets on Twitter — likely fired off in a matter of seconds with a set of thumbs, and directed at the entire world — constitute “unfair labor practices.” Under federal labor law, an employer “cannot interfere with, restrain, or coerce employees in the exercise of their rights” to unionize. This includes a “threat of reprisal” for joining or attempting to join a union. And that is what the board concluded here: Musk and Domenech had threatened employees via tweets.
The NLRB can only reach such a conclusion by willfully misinterpreting these tweets and ignoring the nature of social media. Musk, according to the agency, had threatened to strip employees of their stock options in his tweet when he asked, “Why pay union dues & give up stock options for nothing?” But even a passing glance at the comments reveals his meaning. When asked directly in the thread if he was threatening employee stock options, Musk said no — he’d just been pointing out that the union-negotiated compensation packages at other car plants didn’t include stock options, so unionizing could risk losing that benefit. The board ignored this clarifying remark, concluding that Musk had threatened his staff.
The board’s misinterpretation of Domenech’s sarcastic quip about sending its employees “back to the salt mine” is even more preposterous. As it turns out, The Federalist owns no salt mines and has around seven employees. At least two employees weighed in during NLRB proceedings to confirm that they realized the tweet was a joke. No matter — The Federalist faces a federal order demanding that its senior staff no longer make jokes about unions.
Context aside, there is an even more obvious reason that these tweets are not threats: their authors published them to the world at large. Villains usually crack their knuckles in dark alleys, not on stage. If Musk and Domenech really meant to threaten their employees in any way, public tweets are an odd way to go about it.
It isn’t difficult to see through the NLRB’s thin excuses for suppressing speech: The board doesn’t want a public policy debate that might persuade someone that unionization is not in the best interests of workers.
One might hope that the National Labor Relations Board would favor the airing of a wide range of viewpoints on labor policy; a well-rounded marketplace of ideas better educates the public. But the board evidently is not interested in a marketplace of ideas. Instead, it appears dedicated to cultivating a rigged debate, where any employer will think twice before hammering out a quick tweet about labor policy or educating the public about the possible consequences of unionization.
The result is the debasement of First Amendment values, and a marketplace deprived of a crucial viewpoint on labor policy that affects their livelihood.
Ethan Blevins is an attorney with Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty. Follow him on Twitter @ethanwb.