Tesla v. NLRB

Case: 21-60285 RESTRICTED Document: 259-1 Page: 1 Date Filed: 10/25/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

October 25, 2024

No. 21-60285

Lyle W. Cayce

____________

Clerk

Tesla, Incorporated,

Petitioner Cross-Respondent,

International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America, AFL-CIO,

Petitioner,

versus

National Labor Relations Board,

Respondent Cross-Petitioner.

______________________________

Petition for Review of an Order

of the National Labor Relations Board

Agency Nos. 32-CA-197020,

32-CA-197058, 32-CA-197091,

32-CA-197197, 32-CA-200530,

32-CA-208614, 32-CA-210879,

32-CA-220777

______________________________

Before Elrod, Chief Judge, and Jones, Smith, Stewart, Dennis,

Richman, Southwick, Haynes, Graves, Higginson,

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Willett, Duncan, Engelhardt, Oldham, Wilson,

Douglas, and Ramirez, Circuit Judges. *

Per Curiam †:

This case arises from a union organizing campaign at one of Tesla’s

electric vehicle factories. Three pro-union Tesla employees and the United

Auto Workers (“UAW”) alleged that Tesla engaged in unfair labor practices

in violation of the National Labor Relations Act (“NLRA”). They filed

charges with the National Labor Relations Board (“NLRB”), which found

that a tweet by Tesla CEO Elon Musk was an unlawful threat and ordered it

deleted. The Board likewise found that Tesla employee Richard Ortiz had

been terminated in violation of the NLRA. Tesla petitioned this court for re-

view of that order, and the NLRB cross-petitioned for enforcement. A panel

of this court affirmed the Board’s order and granted its petition for enforce-

ment. Tesla, Inc. v. NLRB, 63 F.4th 981 (5th Cir.), reh’g en banc granted, opin-

ion vacated, 73 F.4th 960 (5th Cir. 2023) (mem.). Tesla petitioned for rehear-

ing en banc, which we granted. Tesla, 73 F.4th 960.

We VACATE the Board’s order and REMAND for further pro-

ceedings.

I

We briefly recount (A) the history of Musk’s tweets, then (B) the

story of Ortiz’s termination.

_____________________

*

Judge Ho is recused and did not participate in this decision.

†

Judge Haynes concurs in the judgment only.

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A

Musk posted a photograph on Twitter 1 of a rocket belonging to one of

his companies, Space Exploration Technologies Corp. A Twitter user named

“dmatkins137”—who was not a Tesla employee—responded to that post

with an article from a publication called “Reveal.” The “Reveal article”

claimed that Tesla maintained unsafe working conditions. Musk and

“dmatkins137” then engaged in the following colloquy:

@elonmusk: Tesla factory literally has miles of painted yellow

lines & tape. Report about forklifts not beeping is also bs. These

are both demonstrably false, but were reported as “facts” by

Reveal.

@dmatkins137: Yellow is fine, got it. How about unions?

@elonmusk: 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 rec-

ord is 2X better than when plant was UAW & everybody al-

ready gets healthcare.

ROA.4536–37.

Two days later, another Twitter user named “ericbrownzzz”—also

not a Tesla employee—replied to Musk’s original tweet. “ericbrownzzz” ac-

cused Musk of threatening to take away employee benefits, and Musk again

responded:

@ericbrownzzz: Hi Elon, why would they lose stock options?

Are you threatening to take away benefits from unionized

workers?

_____________________

1

The website formerly known as “Twitter” is now “X.” For clarity, however, we

will refer to it as Twitter throughout this opinion because this case arose before the name

change.

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@elonmusk: No, UAW does that. They want divisiveness &

enforcement of 2 class “lords & commoners” system. That

sucks. US fought War of Independence to get *rid* of a 2 class-

system! Managers & workers shd be equal w easy movement

either way. Managing sucks btw. Hate doing it so much.

ROA.4537. Musk further stated that “UAW does not have individual stock

ownership as part of the compensation at any other company,” and as such,

Tesla employees would lose stock options if they unionized because of

UAW’s policy. ROA.4539.

UAW filed an unfair-labor-practice charge based on only Musk’s orig-

inal tweet, responding to “dmatkins137.” The Union alleged that the tweet

was a threat to rescind stock options if employees unionized, and therefore

violated Section 8(a)(1) of the NLRA.

The Board agreed. The NLRB believed that Musk’s tweet violated

the standard set forth in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). And

it ordered Musk to delete his tweet.

B

Around the same time, UAW campaigned to unionize Tesla’s facility

in Fremont, California. Tesla employees Richard Ortiz and Jose Moran were

among the most active supporters of UAW’s campaign. During that time,

three Tesla employees testified before the California legislature against

union-backed legislation.

Ortiz did not personally watch these proceedings but wanted to find

out which of his coworkers testified against the legislation. So he asked Mo-

ran to watch the hearings and identify the employees who testified. Moran

sent Ortiz the names of the employees and their photos from Tesla’s internal

Workday website. Ortiz then posted the employees’ photos on a pro-union

Facebook group, along with the following statement:

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These guys been in Sacramento saying we are lying about how

things are at Tesla Management has been taking them one of

them sez [sic] he made $130000 last year . . . . How many of

you make . . . overtime . . . . This just proves how much kissing

ass and ratting on people get you at Tesla and the ones that do

the real work get passed over . . . .

ROA.6278.

One of the outed employees complained to Tesla Human Resources.

The employee said Ortiz’s post was harassment.

Ricky Gecewich opened a human resources investigation. Gecewich

asked Ortiz if he had taken screenshots of the Workday photos to post them

on Facebook. Ortiz denied doing so. When asked where he obtained the pic-

tures, Ortiz said he “didn’t know” and “wasn’t sure.” ROA.535, 537.

After investigating computer records, Tesla learned that Moran sent

Ortiz the screenshots. In light of this information, Gecewich again asked

Ortiz how he got the photographs. At this time, Ortiz admitted that he lied

during his first conversation with Gecewich about how he obtained the pic-

tures. Gecewich then recommended that Tesla terminate Ortiz for “know-

ingly” misleading the investigation and because he “lied about knowing the

source of the Workday screenshots” and “admitted to not telling the truth

during the investigation interviews.” ROA.4508.

Tesla referred Gecewich’s recommendation to an independent de-

cisionmaker, Stephen Graminger. Before making any termination decision,

Graminger asked how Tesla handled dishonesty during previous internal in-

vestigations. He decided to terminate Ortiz after determining that Tesla had

previously terminated an employee for lying to the company.

The NLRB’s General Counsel and UAW filed unfair labor practice

charges against Tesla for terminating Ortiz. The Board determined that

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“[t]he credited evidence show[ed] that [Tesla] terminated Ortiz for lying

during an investigation.” ROA.6285. But it nevertheless found that the com-

pany violated the NLRA. The Board based that finding on Tesla’s anti-union

animus. The Board ordered that Tesla reinstate Ortiz with backpay.

* * *

Tesla petitioned this court for review of the Board’s order, which ad-

dressed both Musk’s tweet and Ortiz’s termination. A panel of this court

agreed with the Board. See Tesla, 63 F.4th at 996. Tesla petitioned for en banc

rehearing, which we granted.

II

We (A) hold that the agency exceeded its authority by ordering Musk

to delete his tweet. We then (B) remand to the agency to consider the fact

that the actual decisionmaker in Ortiz’s firing harbored no anti-union

animus.

A

The NLRB erred in ordering the deletion of Musk’s speech as a rem-

edy for unfair labor practices. That alone is enough to vacate its order, so we

do not reach the merits of whether the tweet constituted an NLRA violation.

Deleting the speech of private citizens on topics of public concern is

not a remedy traditionally countenanced by American law. “[T]he remedy”

for bad speech, after all, should be “more speech, not enforced silence.”

Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring); cf.

Frisby v. Schultz, 487 U.S. 474, 485 (1988) (explaining that a speech re-

striction is narrowly tailored only “if it targets and eliminates no more than

the exact source of the ‘evil’ it seeks to remedy.” (quoting City Council of

L.A. v. Taxpayers for Vincent, 466 U.S. 789, 808 (1984))).

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By contrast, deletion is a remedy for communications that are, in the

First Amendment’s contemplation, not speech at all. For example, the gov-

ernment can order the destruction of obscene material, perjurious material,

or other non-speech material. See Kingsley Books, Inc. v. Brown, 354 U.S. 436,

444 (1957) (upholding a “Penal Law [that] provides for destruction of ob-

scene matter following conviction for its dissemination”); R.A.V. v. City of

St. Paul, 505 U.S. 377, 383 (1992) (explaining that certain communications

fall outside the scope of the First Amendment and are “not . . . speech at all”

(citation omitted)); see also United States v. Alvarez, 567 U.S. 709, 717–18

(2012) (plurality) (listing categories).

These same rules apply to labor disputes. Consider Gissel, for exam-

ple. That case involved pamphlets that the Board found unlawful under the

NLRA. 395 U.S. at 587–89. Rather than order the offending pamphlets de-

stroyed, the Board issued a bargaining order against the corporation. See id.

at 591–92; see also 29 U.S.C. § 160(a). Such a sanction fell within the tradi-

tional remedial ambit of the First Amendment by punishing the speaker for

wrongful speech, rather than destroying the communications.

In this case, we assume without deciding that the NLRA applies to

speech on Twitter. And we further assume without deciding that Musk’s

tweet violated the NLRA. 2 Even so, the Board’s speech-deletion order

_____________________

2

The dissent accuses us of issuing a “logically incoherent en banc opinion given

that finding a violation is a condition precedent to the issue of remedy.” Post, at 12; see also

id. at 20. True, we “expressly pretermit[] whether Musk’s tweet was an unfair labor prac-

tice,” id. at 12, because we hold that the tweet-deletion injunction cannot issue. Pretermit-

ting the merits because the remedy cannot issue is far from logically incoherent. Federal

courts make this move in many areas of law. See, e.g., Pearson v. Callahan, 555 U.S. 223,

242 (2009) (leaving “to the sound discretion of the lower courts to determine the order

of ” deciding (1) whether the government has violated the Fourth Amendment and (2)

whether to deny suppression under the good-faith exception). And independent bars to in-

junctive relief are often a reason not to reach the merits of a case. See, e.g., Whole Woman’s

Health v. Jackson, 595 U.S. 30, 44-45 (2021) (pretermitting the merits of Texas S.B. 8’s

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cannot stand. We hold that Musk’s tweets are constitutionally protected

speech and do not fall into the categories of unprotected communication like

obscenity and perjury. And the Board does not dispute the general rule that

it (like every other part of the Government) is powerless to delete protected

speech. Rather, the Board’s only authority for its speech-deletion remedy is

a previous NLRB opinion involving speech on Twitter, FDRLST Media, 370

N.L.R.B. No. 49, at 1 n.5 (2020), which was subsequently vacated by the

Third Circuit. See FDRLST Media, LLC v. NLRB, 35 F.4th 108, 126 (3d Cir.

2022) (vacating the NLRB’s finding that a Tweet was an unfair labor practice

and holding that when “protecting employees’ statutory labor rights, neither

we, nor the Board, can violate an employer’s right to free speech under the

First Amendment”). We follow our sister circuit in vacating the Board’s de-

cision here. 3

_____________________

constitutionality where no Ex parte Young action was available against the Texas attorney

general); Younger v. Harris, 401 U.S. 37, 41 (1971) (declining to rule on the “constitution-

ality of the state law” sought to be enforced by the district attorney because “of the national

policy forbidding federal courts to stay or enjoin pending state court proceedings except

under special circumstances”); Jones v. Hendrix, 599 U.S. 465, 471–80 (2023) (as in much

of habeas law, declining to reach the merits of postconviction relief claim where the writ of

habeas is barred under AEDPA); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 497–501

(1867) (declining to address the constitutionality of the Reconstruction Acts since the in-

junction against the President could not issue).

3

Before the en banc court, the agency offers a new argument. That is something

this court cannot permit. See Calcutt v. FDIC, 598 U.S. 623, 628–29 (2023) (per curiam);

see also SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (holding that if the agency rests its

decision on “grounds [that] are inadequate or improper, the court is powerless to affirm

the administrative action by substituting what it considers to be a more adequate or proper

basis”). Even if Chenery did not forbid us from accepting the NLRB’s argument, it is still

unavailing. The agency now justifies the speech deletion as a “customary” exercise of the

Board’s power “to expunge a violation.” NLRB EB Br. at 42. To support that “custom-

ary” power, the Board points to a case where it ordered an employer to remove from its

files references to an unlawful discharge. Id. at 42 n.20 (citing Cordua Rests., Inc., 368

N.L.R.B. No. 43, at *7 (2019)). Whatever power the Board might or might not have to order

such remedies involving a company’s non-public, internal files, it says nothing about the

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B

Finally, we consider the Board’s decision to order Tesla to reinstate

Ortiz with backpay.

We review the Board’s findings for substantial evidence. Dish Network

Corp. v. NLRB, 953 F.3d 370, 376 (5th Cir. 2020). Substantial evidence is a

term of art defined both in the NLRA and through years of Supreme Court

precedent. Id.; see also 29 U.S.C. § 160(e)–(f) (establishing that substantial

evidence means a review of “the record considered as a whole”). The

Supreme Court has explained: “The substantiality of evidence must take into

account whatever in the record fairly detracts from its weight.” Universal

Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). And it has explained that

“the requirement for canvassing ‘the whole record’ in order to ascertain sub-

stantiality” means that Congress has

made it clear that a reviewing court is not barred from setting

aside a Board decision when it cannot conscientiously find that

the evidence supporting that decision is substantial, when

viewed in the light that the record in its entirety furnishes, in-

cluding the body of evidence opposed to the Board’s view.

Id. What that means for our court is that the evidence from the Board “must

be substantial, not speculative, nor derived from inferences upon infer-

ences.” Brown & Root, Inc. v. NLRB, 333 F.3d 628, 639 (5th Cir. 2003). So

“to survive substantial evidence review, then, the Board has to consider

‘contradictory evidence or evidence from which conflicting inferences could

_____________________

Board’s authority over public speech on topics of public concern. See Snyder v. Phelps, 562

U.S. 443, 452 (2011) (“[S]peech on public issues occupies the highest rung of the hierarchy

of First Amendment values, and is entitled to special protection.” (quoting Connick v. My-

ers, 461 U.S. 138, 145 (1983))).

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be drawn.’ ” Dish Network Corp., 953 F.3d at 377 (quoting Universal Camera,

340 U.S. at 487).

Here, the NLRB failed to consider the contradictory fact that the de-

cisionmaker who authorized Oritz’s firing, Graminger, had no anti-union an-

imus. The sworn testimony before the Board on the subject went as follows:

Q: Was Mr. Ortiz’s union activity—did that play any role what-

soever in the decision you made to terminate Mr. Ortiz?

A: No, not at all.

ROA.1309–10. In fact, the record shows that Graminger was a member of a

different union and harbored pro-union sentiments. He testified that he was

interested in “[t]he efforts to make UAW and . . . because I’m still a member

of the union in Germany and I still pay my membership fees—I’m interested

in it.” ROA.1331. The Board did not consider these facts, which detract from

its conclusion, and hence its order must be vacated. See Dish Network Corp.,

953 F.3d at 377.

The NLRB and UAW resist this conclusion by arguing that Tesla can-

not rely on Graminger as a neutral decisionmaker because he received some

incorrect information from Gecewich. It is true that an employer cannot

avoid liability by pointing to a neutral decisionmaker if another decisionmaker

“had a significant role in the discharge and [used] anti-union discrimination

[to] infect[] what might otherwise have been an innocent sterile act.” NLRB

v. Neuhoff Bros., Packers, Inc., 375 F.2d 372, 375 (5th Cir. 1967).

Here, however, Gecewich’s misstatements were minor and did not

play a “significant role” in Ortiz’s termination. For example, Gecewich con-

fused which employee complained about Workday misuse, the private nature

of the Facebook group where Ortiz posted the Workday pictures, and the na-

ture of the employees’ legislative testimony. None of the alleged errors relate

to the essential facts that Ortiz lied, and that Tesla had previously terminated

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an employee for dishonesty during company investigations. That is a far cry

from Neuhoff, where an anti-union supervisor threatened to “fire anyone

[who] sign[ed] a union card,” personally threatened to fire a particular em-

ployee who signed a union card, and then “categorically” told the ultimate

decisionmaker to discharge that employee. Id. at 374–76.

On remand, the Board is free to reconsider the record and make any

decision supported by substantial evidence. It bears emphasis, however, that

the Board bears the burden of showing “that the employer acted out of anti-

union animus.” Valmont Indus., Inc. v. NLRB, 244 F.3d 454, 464 n.2 (5th Cir.

2001). This means the Board “must do more than simply support an infer-

ence that protected conduct is a motivating factor in the employer’s deci-

sion.” Id.

* * *

For the foregoing reasons, the NLRB’s order is VACATED, Tesla’s

petition for review is GRANTED, the Board’s petition for enforcement is

DENIED, and the case is REMANDED to the NLRB. The Board’s cross-

petition for enforcement is DENIED AS MOOT.

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James L. Dennis, Circuit Judge, joined by Stewart, Richman,

Southwick, Graves, Higginson, Douglas, and Ramirez,

Circuit Judges, dissenting:

In a short opinion that is light on law and facts, the en banc plurality

only reaches two of the four issues on appeal and punts on the rest. It holds

that the National Labor Relations Board (NLRB)’s order directing Elon

Musk to delete a coercive tweet (a threat to take stock options away from

Tesla employees if they voted to become unionized) violates the First

Amendment, against the weight of four Supreme Court authorities. See

NLRB v. Va. Elec. & Power Co., 314 U.S. 469 (1941); Thomas v. Collins, 323

U.S. 516 (1945); NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); Chamber of

Com. v. Brown, 554 U.S. 60 (2008). It also holds that pro-union Tesla

employee Richard Ortiz may not have been unlawfully terminated because

Tesla’s ultimate decision-maker, a supervisor-employee, testified that he

harbored no anti-union animus—testimony the NLRB considered and

rejected. The plurality says zip about whether the NLRB is entitled to

enforcement of the seven uncontested Tesla labor violations found by the

NLRB. And the plurality expressly pretermits whether Musk’s tweet was an

unfair labor practice (ULP), resulting in a logically incoherent en banc

opinion given that finding a violation is a condition precedent to the issue of

remedy in this case. See NLRB v. Riley-Beaird, Inc., 681 F.2d 1083, 1086 (5th

Cir. 1982) (holding that whether speech is protected by the First Amendment

is an identical inquiry to whether it constituted a threat because the First

Amendment’s protections end where threats in violation of the NLRA

begin).

The plurality’s approach is inconsistent with established First

Amendment principles and with this court’s role as a court of review. I would

grant the NLRB’s petition to enforce its findings of the seven ULPs in which

Tesla has acquiesced; find that its factual findings with respect to Musk’s

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tweet and Ortiz’s termination are supported by substantial evidence; and find

that it did not exceed or abuse its broad remedial authority—to take action to

“effectuate the policies of” the National Labor Relations Act (NLRA), see 29

U.S.C. § 160(c)—in ordering Musk to delete the threatening tweet. I

therefore respectfully dissent.

I

The plurality omits several material details from its opinion. In

summer 2016, Tesla employee Jose Moran contacted the United Auto

Workers union (UAW) about unionizing Tesla employees at the technology

and design corporation’s car manufacturing facility in Fremont, California.

As part of the unionization effort, the UAW created a Voluntary Organizing

Committee (VOC) of employees acting as union organizers. Along with

Moran and others, Richard Ortiz, Jonathan Galescu, and Michael Sanchez

were VOC members. As retribution for efforts to organize, Tesla repeatedly

violated the NLRA by coercing and discriminating against supporters of the

union. Specifically, as affirmed by the NLRB, an Administrative Law Judge

(ALJ) found that Tesla: (1) interfered with multiple employees’ leafletting

activities in February and May 2017; (2) prohibited employees from

distributing union materials without approval and threatened them with

discharge on March 23, 2017; (3) threatened on March 30, 2018, that

selecting the UAW as a bargaining representative would be futile; (4)

prohibited employees from communicating with the media about their

employment by requiring employees to sign a Confidentiality Agreement

containing a provision that stated “it is never OK to communicate with the

media” about Tesla; (5) coercively interrogated employees about their

protected union activities; (6) promulgated a rule restricting employees’ use

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of Tesla’s “Workday” program 1 in response to Ortiz and Moran’s protected

union activities; (7) disciplined Moran for his union activity; (8) unlawfully

terminated Ortiz for engaging in protected union activity; and (9) threatened

to take stock options away from Tesla employees if they voted to became

unionized by means of a tweet by Elon Musk on Twitter (now known as

“X”). This en banc appeal centers around only the two ULPs that Tesla

contests on appeal: the threatening tweet by Musk; and the termination of

Tesla employee and union activist Richard Ortiz.

A

Tesla’s CEO, agent, and supervisor Elon Musk maintains the Twitter

handle “@elonmusk” as his personal account and uses it to tweet 2 about

Tesla’s business decisions and plans, finances, production goals, personnel

matters, and breaking news. On May 20, 2018, during the organizational

campaign, 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 & give up stock options for nothing? Our safety record is

2X better than when plant was UAW & everybody already gets

healthcare.

Musk’s tweet was in response to another user, who asked Musk, in part,

“How about unions?”. Over the next few days, other users and Musk

_____________________

1

“Workday is a third-party [human resources] software program that [Tesla] uses

to electronically store and access employees’ personnel files. Employees can access Work-

day to, among other things, view and electronically sign documents.”

2

“[T]he social media platform Twitter allows its users to publish short messages,

photographs, videos, and hyperlinks (all called ‘tweets’) to the general public. Other users

may respond to or republish those tweets and engage in virtual dialogues with other users

on the platform.” Campbell v. Reisch, 986 F.3d 822, 823 (8th Cir. 2021).

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interacted on the same “thread” 3 of tweets, as well as on an additional

thread, in what Musk asserts was his effort to clarify his earlier tweet. Musk’s

attempted clarification came days after the original May 20 tweet.

On May 23, 2018, the UAW filed a ULP charge based on the May 20

tweet, alleging that Musk’s tweet was a threat to rescind employees’ stock

options if the employees voted to unionize, a violation of Section 8(a)(1) of

the NLRA.

B

Around the same time as Musk’s tweet, at Tesla’s behest, three

employees opposed to unionization, including Travis Pratt, testified against

proposed legislation supported by the UAW during a California legislature

public hearing. Ortiz did not attend the hearing, but it was recorded. A

political organizer on behalf of the UAW sent Ortiz a link to the video

recording. Ortiz had difficulty accessing the recording, so he sent the link to

Moran and asked if Moran could open it. Ortiz also asked Moran if he knew

who the three employees were. Using his personal phone, Moran watched

the video, noted the names of the employees, and used Tesla’s Workday

program to search for the employees’ names to verify that they were in fact

Tesla employees. 4 Moran took screenshots of the Workday profiles of the

_____________________

3

When one looks at a tweet, “[a] comment thread appears below the original tweet

and includes both the first-level replies (replies to the original tweet) and second-level re-

plies (replies to the first-level replies).” Knight First Amend. Inst. Columbia Univ. v. Trump,

928 F.3d 226, 230 (2d Cir. 2019), vacated as moot sub nom. Biden v. Knight First Amend. Inst.

Columbia Univ., 141 S. Ct. 1220 (2021). Twitter threads thus “reflect multiple overlapping

conversations among and across groups of users and are a large part of what makes Twitter

a social media platform.” Id. (citation and quotation marks omitted). Twitter threads be-

come a permanent record of what the users said on that occasion.

4

At the time of this case, Tesla had no rule prohibiting Moran from using Workday

to confirm the identity of the three pro-company employees who appeared in the legislative

hearing against the UAW-sponsored legislation. Nor was there any company rule against

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three employees and sent them to Ortiz. The Workday profiles included a

photo of each employee. Tesla had no policy prohibiting such use of Workday

or otherwise restricting employee access to the program at that time.

Ortiz posted two of the screenshots, including a screenshot of Pratt’s

profile, to a private “Tesla Employees for UAW Representation” Facebook

page 5 and included his comment that the pictured employees were “in

Sacramento saying we are lying about how things are at Tesla.” Ortiz noted

that Pratt testified at the public hearing that his salary was $130,000, and

Ortiz commented, “[t]his just proves how much kissing ass and ratting on

people get you at Tesla and the ones that do the real work get passed over.”

Though the Facebook group was private, and Pratt was not a member,

someone sent him the post. Pratt then sent Ortiz a message, objecting to the

“name calling,” after which Ortiz quickly removed the post from Facebook.

Pratt also texted a screenshot of the post to Josh Hedges, a Senior

Human Resources Director for Production and Supply Chain at Tesla, with

the caption, “[l]ooks like we got under some people’s skin,” followed by a

smiley face, referring to the testimony. Hedges asked whether the post was

on Facebook, and Pratt responded, “Yea lol [laugh out loud] I’m pretty sure

it’s on their fair future at Tesla thing.” Pratt allegedly told Hedges by phone

_____________________

Ortiz’s use of the information gathered by Moran to inform pro-union employees of Tesla’s

agents-employees’ anti-union legislative lobbying activity.

5

Employees interested in unionizing voted on a campaign slogan, “Driving a Fair

Future at Tesla,” and the UAW created a public website and public Facebook group, “A

Fair Future at Tesla,” in support of the campaign. Moran also created a private Facebook

group called “Tesla Employees for UAW Representation.” While the public group could

be joined and viewed by anyone on Facebook, access to the private group was restricted

and required approval from Moran or Ortiz.

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that he felt harassed and targeted because of the Facebook post. 6 After

speaking with Pratt, Hedges submitted a complaint to Tesla’s employee-

relations team and contacted Tesla investigator Ricky Gecewich about the

situation. A few days later, Gecewich interviewed Pratt, who repeated his

story.

Gecewich also interviewed Ortiz, who said he apologized and

removed the post after Pratt contacted him. Gecewich then asked where the

pictures came from and Ortiz said he could not remember, which he later

admitted was untrue. Gecewich obtained logs of who had viewed Pratt’s

Workday profile and identified Moran. Gecewich met with Moran, who said

he accessed Pratt’s Workday profile to confirm that he was a Tesla employee

after seeing his testimony at the legislature. Moran told Gecewich that he

needed to identify anti-union employees as part of the unionization

campaign. He also told Gecewich he sent the screenshots to Ortiz. Gecewich

met with Ortiz again, and Ortiz admitted that he had feigned lack of memory

to protect Moran’s identity.

Gecewich penned a report recommending that Ortiz be fired for

“admittedly lying,” and that Moran be disciplined “for accessing Workday

for non-business related purposes.” The report said Moran claimed he was

asked by a UAW representative to verify whether Pratt and others were Tesla

employees. The report also said that Moran had admitted to using Workday

for other personal purposes in the past—for example, to compare his title to

other employees. Hedges agreed with Gecewich’s recommendation that

_____________________

6

Pratt did not testify before the ALJ. Ortiz, Hedges, Moran, and Gecewich did.

The ALJ found Moran credible, found Ortiz credible in part, and found Hedges and

Gecewich not credible, assigning reasons for each credibility finding.

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Ortiz be fired and chose Stephan Graminger, Tesla’s Director of Body

Manufacturing, to be the ultimate decisionmaker as to Ortiz’s fate.

Gecewich met with Graminger, along with Ortiz’s direct manager,

Ron Martinez, and another human resources official. Gecewich told

Graminger that Ortiz had leaked personal information and lied during the

investigation. Graminger did not make an immediate decision, but first asked

his superior, Peter Hochholdinger, whether similar cases involving lying

during an investigation had resulted in termination and was told that they had

resulted in termination. After receiving this information, Graminger

approved the decision to fire Ortiz. 7 Ortiz’s employment at Tesla was

terminated on October 18, 2017. Ortiz’s termination was not based on any

specific human resources rule or policy.

C

The UAW and three pro-union Tesla employees filed multiple

charges with the NLRB alleging ULPs against Tesla. An ALJ found that

Tesla had committed nine violations, and the NLRB issued an order

affirming the ALJ. In our court, Tesla filed a petition for review of two of the

nine ULPs and the NLRB filed a cross-application to enforce its order. A

panel of our court issued a per curiam opinion denying Tesla’s petition and

granting the NLRB’s cross-application. See Tesla, Inc. v. NLRB, 63 F.4th 981

(5th Cir. 2023), reh’g en banc granted, opinion vacated, 73 F.4th 960 (5th Cir.

2023). Our en banc court granted rehearing.

On en banc rehearing, Tesla continues to only challenge two of the

nine labor violations found by the NLRB and the NLRB’s tweet-deletion

remedy. First, Tesla challenges the NLRB’s finding that Musk committed a

_____________________

7

The ALJ found Graminger to be a “more credible witness” than Hedges and

Gecewich, but still found his testimony confusing and contradictory.

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labor violation by posting an unlawful threat on Twitter. Second, Tesla

contends that part of the NLRB’s choice of remedy for this violation—an

order for Tesla to direct Musk to delete the tweet—was “improper.” And

third, Tesla objects to the NLRB’s finding that employee Richard Ortiz was

unlawfully terminated.

II

Most puzzling among the plurality’s errors is its silent declination of

the NLRB’s request for summary enforcement of the seven labor violations

that Tesla chose not to contest on appeal. The NLRB is clearly entitled to

summary enforcement of its order pertaining to the following Tesla

violations: (1) interfering with employee leafletting; (2) prohibiting

employees from distributing union materials without approval/threatening

them with discharge; (3) threatening that selecting the UAW would be futile;

(4) prohibiting employees from communicating with the media about their

employment; (5) interrogating certain employees about union activity; (6)

promulgating a rule restricting Workday use in response to Ortiz and

Moran’s union activity; and (7) disciplining Moran for his union activity.

Tesla does not challenge these findings, and “[f]indings of the Board that the

employer does not challenge are waived on review, entitling the Board to

summary enforcement.” Cordua Rests., Inc. v. NLRB, 985 F.3d 415, 422 (5th

Cir. 2021) (citation omitted). The plurality’s refusal to grant the NLRB’s

request for enforcement of these ULP findings is devoid of any support or

explanation in its opinion or the record.

III

The ALJ found that Musk’s tweet violated Section 8(a)(1) of the

NLRA because it could be reasonably understood by employees as a threat to

unilaterally rescind stock options if employees unionized, rather than as a

carefully phrased prediction, based on objective fact, of the likely

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consequences of unionization beyond Tesla’s control. 8 The NLRB affirmed

the ALJ’s findings and ordered Tesla to cease and desist from its conduct and

to direct Musk to delete the tweet from his Twitter account. Tesla argues

that the tweet, especially when viewed in context, was not a threat and was

instead protected by Section 8(c) of the NLRA. The en banc plurality

pretermits this issue for no stated reason, even though it vacates the

corresponding remedy on First Amendment grounds. Ante, at 7–8 (plurality

opinion). I would reach the merits of the ULP issue because finding a labor

violation is a condition precedent to addressing the issue of the tweet deletion

remedy. See Riley-Beaird, Inc., 681 F.2d at 1086.

Since the NLRA’s inception, Section 7 has afforded employees “the

right to self-organization, to form, join, or assist labor organizations, to

bargain collectively through representatives of their own choosing, and to

engage in other concerted activities for the purpose of collective bargaining

or other mutual aid or protection”—and “the right to refrain from any or all

of such activities.” See 29 U.S.C. § 157. To make this guarantee effective,

Section 8(a)(1) makes it a ULP for an employer “to interfere with, restrain,

or coerce employees in the exercise of the rights guaranteed in” Section 7.

See 29 U.S.C. § 158(a)(1).

“An unlawful threat is established under § 8(a)(1), if under the totality

of the circumstances, an employee could reasonably conclude that the

employer is threatening economic reprisals if the employee supports the

union.” NLRB v. Delta Gas, Inc., 840 F.2d 309, 311 (5th Cir. 1988) (citation

omitted). “The test for determining ‘whether an employer has violated

_____________________

8

As explained, the tweet at issue stated “[n]othing 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.”

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§ 8(a)(1) is whether the employer’s questions, threats or statements tend to

be coercive, not whether the employees are in fact coerced[.]’” Brown &

Root, Inc. v. NLRB, 333 F.3d 628, 634 (5th Cir. 2003) (quoting NLRB v.

PNEU Elec., Inc., 309 F.3d 843, 850 (5th Cir. 2002)). Whether an employer

is making an unlawful threat is measured objectively, from the perspective of

an employee, and is not contingent on “either the motivation behind the

remark or its actual effect.” Miller Elec. Pump & Plumbing, 334 NLRB 824,

824 (2001); Brown & Root, 333 F.3d at 634.

Section 8(c) of the NLRA cabins Section 8(a)(1) by stating that “[t]he

expressing of any views, argument, or opinion, or the dissemination

thereof . . . shall not constitute or be evidence of an unfair labor practice

under any of the provisions of this subchapter, if such expression contains no

threat of reprisal or force or promise of benefit.” See 29 U.S.C. § 158(c). To

fall within Section 8(a)(1)’s protection then, an employer’s prediction of the

effects of unionization “must be carefully phrased on the basis of objective

fact to convey an employer’s belief as to demonstrably probable

consequences beyond his control.” Gissel, 395 U.S. at 618. If the employer’s

statement instead carries “any implication that an employer may or may not

take action solely on his own initiative” in response to unionization, then it

is a “threat of retaliation.” Id. (emphasis added). Thus, a statement implying

that unionization will result in the loss of benefits, without some explanation

or reference to the collective-bargaining process, economic necessity, or

other objective facts, is a coercive threat, but is not a threat if made in the

context, for example, of explaining that existing benefits may be traded away

during the bargaining process. UNF W., Inc. v. NLRB, 844 F.3d 451, 458 (5th

Cir. 2016). Put simply, “an employer is free only to tell ‘what he reasonably

believes will be the likely economic consequences of unionization that are

outside his control,’ and not ‘threats of economic reprisal to be taken solely

on his own volition.’” Gissel, 395 U.S. at 619 (quoting NLRB v. River Togs,

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Inc., 382 F.2d 198, 202 (2d Cir. 1967)). In this way, Section 8(c) of the NLRA

balances “an employer’s free speech right to communicate his views to his

employees” against an employee’s Section 7 right to associate freely and to

be free of coercion. Id. at 617.

The NLRB is an expert in labor law, so our review of its orders is

supposed to be “limited and deferential.” In-N-Out Burger, Inc. v. NLRB,

894 F.3d 707, 714 (5th Cir. 2018). The NLRB’s factual findings are

“conclusive” so long as they are “supported by substantial evidence on the

record considered as a whole.” 9 29 U.S.C. § 160(e). “Substantial evidence is

that which is relevant and sufficient for a reasonable mind to accept as

adequate to support a conclusion. It is more than a mere scintilla, and less

than a preponderance.” IBEW, Loc. Unions 605 & 985 v. NLRB, 973 F.3d 451,

457 (5th Cir. 2020) (citation omitted). “[T]he ALJ’s decision must be upheld

if a reasonable person could have found what the ALJ found, even if” we

would have reached a different conclusion had we heard the case in the first

instance. Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1314 (5th Cir. 1988).

“In determining whether the Board’s factual findings are supported by the

record, we do not make credibility determinations or reweigh the evidence.”

NLRB v. Allied Aviation Fueling, 490 F.3d 374, 378 (5th Cir. 2007); accord Ill.

Cent. R.R. Co. v. Norfolk & W. Ry. Co., 385 U.S. 57, 69 (1966) (“It is not for

the court [on substantial evidence review] to strike down conclusions that are

reasonably drawn from the evidence and findings in the case.”). “Only in the

most rare and unusual cases will an appellate court conclude that a finding of

fact made by the [NLRB] is not supported by substantial evidence.” Flex Frac

_____________________

9

Throughout this dissent, I occasionally focus on the ALJ’s decision as opposed to

the NLRB’s decision because the ALJ engaged in the initial fact-finding with which the

NLRB largely agreed. See, e.g., NLRB v. Gulf States United Tel. Co., 694 F.2d 92, 95 (5th

Cir. 1982) (focusing on the findings of the ALJ, which were later adopted by the NLRB).

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Logistics, L.L.C. v. NLRB, 746 F.3d 205, 208 (5th Cir. 2014) (quoting Merchs.

Truck Line, Inc. v. NLRB, 577 F.2d 1011, 1014 n.3 (5th Cir. 1978)). The

NLRB’s legal conclusions are reviewed de novo. Id. at 207.

* * *

At the outset, Tesla argues that Musk’s tweet was not made in the

labor relations context because it was posted on Twitter, a “natural forum

for public debate.” Given that forum, Tesla argues, the NLRA’s

proscriptions cannot reach Musk’s speech. For support, Tesla relies on the

Third Circuit’s decision in FDRLST Media, LLC v. NLRB, 35 F.4th 108 (3d

Cir. 2022).

A close reading of FDRLST Media, LLC reveals that the Third

Circuit’s opinion is inapposite to Tesla’s argument, but instead supports my

conclusion that Musk’s tweet was made in the labor relations context. In

FDRLST Media, LLC, the Third Circuit found that a satirical, nonsensical

tweet 10 (about sending writers and editors to the salt mine) by the executive

officer of The Federalist was not a threat in a case where there was not “even

a single example of labor-management tension.” 35 F.4th at 123–24. 11 In

doing so, the Third Circuit highlighted that “[t]he record does not show that

[the executive officer] ever used []his account to communicate with

_____________________

10

In that case, on the same day that unionized employees of a competitor magazine

business walked off the job, the executive officer of The Federalist tweeted, “FYI @fdrlst

first one of you tries to unionize I swear I’ll send you back to the salt mine.” FDRLST

Media, LLC, 35 F.4th at 113. The Third Circuit found “[t]he tweet’s suggestion that . . .

[writers and editors] might be sent ‘back’ to work in a ‘salt mine’” was “farcical.” Id. at

123. “The image evoked—that of writers tapping away on laptops in dimly-lit mineshafts

alongside salt deposits and workers swinging pickaxes—is as bizarre as it is comical.” Id.

11

Of course, those facts are wholly distinguishable from those present in this case.

Here, there was no element of humor in Musk’s tweet and the instant case arose from a

“tense union campaign” in the context of “Tesla’s history of labor violations.” Tesla, Inc.,

63 F.4th at 986, 993.

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employees or that employees were required to follow it.” Id. at 124. In the

present case, by contrast, referencing the “Tesla team,” Musk issued a

public message on a public platform that reached over twenty-two million

individuals—some of whom are employees of Tesla—advocating against

unionization at Tesla during an ongoing and heated labor dispute. The parties

stipulated that Twitter, and the use of tweets, is a commonly accepted form

in which some companies announce news in lieu of, or in addition to, press

releases. Tesla specifically stipulated that Musk uses his personal Twitter

account to communicate Tesla’s business decisions and plans, finances,

production goals, personnel matters, and breaking news. Indeed, Tesla’s

head of human resources credibly testified that “she understood Musk to

tweet on behalf of Tesla.” And we know that at least one Tesla employee saw

the tweet. I would find that Musk’s dissemination on Twitter is akin to a

company official issuing a press release to the public where anyone including

employees may read the statement. See Vemco, Inc., 304 NLRB 911, 925,

enforced in part by NLRB v. Vemco, Inc., 989 F.2d 1468 (6th Cir. 1993) (press

release broadcasted to the public sufficiently communicated same to the

employees). Just as there, the undisputed facts of this case demonstrate that

Musk’s tweet occurred in the labor relations context.

Beyond that, Tesla’s argument that Musk’s May 20, 2018, tweet

“was not threatening on its face” is unavailing because implied threats are

threats under the NLRA. See, e.g., Tellepsen Pipeline Servs. Co. v. NLRB, 320

F.3d 554, 564 (5th Cir. 2003) (“[Employer’s] statements . . . constitute[d]

implied threats of reprisal for union activities in violation of section

8(a)(1).”); J.L.M. Inc., 312 NLRB 304, 305 (1993) (implied threat contained

in an employer’s posting violated the NLRA). Tesla claims that the tweet

was not a threat because it started out by saying that there was “[n]othing

stopping” employees from unionizing and it is a strain to characterize “give

up stock options for nothing” as a threat, because, unlike the threat of plant

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closure, compensation is not within the employer’s unilateral control once

employees unionize and the parties engage in collective bargaining. However,

because stock options are part of Tesla’s employees’ compensation, and

because nothing in the tweet suggested that Tesla would be forced to end

stock options on account of unionization, or that the UAW would be the

cause of giving up stock options, substantial evidence supported the NLRB’s

conclusion that the tweet was an implied threat to end stock options as

retaliation for unionization. The record, in fact, bears out that only Tesla has

the power to unilaterally revoke stock option benefits and the UAW has no

policy precluding stock option benefits for its members. See Gissel, 395 U.S.

at 618 (requiring “demonstrably probable consequences beyond [the

employer’s] control” that rest on “objective fact”). Moreover, the

statement in Musk’s tweet is materially similar to other statements that the

NLRB and our court have found to be threats. See, e.g., NLRB v. Bama Co.,

353 F.2d 320, 323 (5th Cir. 1965) (involving a supervisor threat that

“unionization would probably result” in lost benefits); Hendrix Mfg. Co. v.

NLRB, 321 F.2d 100, 104 (5th Cir. 1963) (“[I]f the Union came in, the

current profit sharing plan would be discontinued.”); Intermedics, Inc., 262

NLRB 1407, 1411 (1982), enforced by NLRB v. Intermedics, Inc., 715 F.2d 1022

(5th Cir. 1983) (“[I]f the Company were to go union the employees would

lose all their benefits.”).

Tesla’s next argument, that the tweet was not a threat because it was

grounded in the objective fact that UAW-represented employees at other

companies supposedly do not have stock options, misapplies the relevant law.

The legal test to determine what constitutes a threat under the NLRA is

whether the tweet would have been reasonably understood by employees as

a threat and therefore whether it tended to be coercive, not whether

employees would have been able to independently verify that the tweet was

based in objective fact. Brown & Root, 333 F.3d at 634. The tweet itself did

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not include any objective facts that would lead a reasonable employee to

conclude that the UAW, rather than Tesla, would be the cause of employees

giving up stock options. 12 UNF W., Inc., 844 F.3d at 458 (“[I]f the statement

in its context fails to include any reference to the collective-bargaining

process or to any economic necessities or other objective facts as a basis for

its prediction . . . then it is impermissible, because it implies that an employer

may act on its own initiative, unilaterally, and for its own reasons.” (internal

quotation omitted)).

Furthermore, the remainder of the Twitter thread, a related thread,

and a later press release do nothing to stop employees from reasonably

interpreting Musk’s May 20, 2018, tweet as a threat. 13 Tesla postulates that

the ALJ erred by not analyzing the tweet in the context of later tweets and

communications, demonstrating that Musk believed the UAW would take

away stock options and clarifying that the original tweet was not a threat.

Tesla is incorrect for two reasons. First, Musk’s May 22 and May 23 tweets

and publications were not “contemporaneous” with his May 20 tweet, so

they cannot change whether the original tweet was objectively an implied

threat. Id. (“[C]ontemporaneous or earlier contextual factors can influence a

statement’s reasonable import for the listener at the time that the statement

was uttered.” (citation omitted)). Second, although “additional comments

can be made to clarify, expand, or otherwise alter the context and reasonable

_____________________

12

And again, the record before us establishes that the UAW has no policy prohib-

iting stock option benefits for union members.

13

On May 22, 2018, two days after the initial tweet, Musk was asked by another

Twitter user, in a reply to his initial May 20 tweet, “[a]re you threatening to take away

benefits from unionized workers?”, to which he responded “No, UAW does that.” The

next day, May 23, writing on a different Twitter thread, Musk tweeted “UAW does not

have individual stock ownership as part of the compensation at any other company.” The

users that Musk responded to were not Tesla employees.

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import” of the original tweet, id., the parties stipulated that “[i]t is not

possible to know or determine if every individual that viewed the tweets by

Elon Musk [on] May 20 also viewed the tweets by Elon Musk [from] May 22

and 23.” Combined with Tesla’s history of labor violations, this supports the

NLRB’s finding that employees would understand Musk’s tweet as a threat

to retaliate by rescinding stock options; especially when considered in the

context of “the economic dependence of [Tesla] employees on their

employer[].” Gissel, 395 U.S. at 617.

Lastly, Tesla asks us to depart from our precedent and the precedent

of every other circuit by arguing that the absence of subjective employee

coercion evidence undercuts the NLRB’s finding that Musk’s tweet was

coercive. But the test for determining “whether an employer has violated

Section 8(a)(1) is whether the employer’s questions, threats or statements

tend to be coercive, not whether the employees are in fact coerced.” Brown

& Root, 333 F.3d at 634; see also, e.g., Allegheny Ludlum Corp. v. NLRB, 301

F.3d 167, 176 (3d Cir. 2002) (“[T]he test is an objective test in which the

employer’s intent is irrelevant and the proper inquiry is the impression of a

reasonable employee.”); Teamsters Loc. Union No. 171 v. NLRB, 863 F.2d

946, 954 (D.C. Cir. 1988); NLRB v. Marine Optical, Inc., 671 F.2d 11, 18 (1st

Cir. 1982); HealthBridge Mgmt., LLC v. NLRB, 902 F.3d 37, 46 (2d Cir.

2018); Alton H. Piester, LLC v. NLRB, 591 F.3d 332, 336 (4th Cir. 2010);

Torbitt & Castleman, Inc. v. NLRB, 123 F.3d 899, 906 (6th Cir. 1997); C&W

Super Mkts., Inc. v. NLRB, 581 F.2d 618, 624 n.5 (7th Cir. 1978); Russell

Stover Candies, Inc. v. NLRB, 551 F.2d 204, 207–08 (8th Cir. 1977); Lippincott

Indus., Inc. v. NLRB, 661 F.2d 112, 114 (9th Cir. 1981); Lear Siegler Inc. v.

NLRB, 890 F.2d 1573, 1580 (10th Cir. 1989); Mead Corp. v. NLRB, 697 F.2d

1013, 1025 (11th Cir. 1983). Tesla accurately recounts that in FDRLST

Media, LLC, 35 F.4th at 125, the Third Circuit stated, “subjective responses

can be relevant” in a case where “a third party with no connection to the

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employer or the employees—and who lack[ed] knowledge of the relevant

context—file[d] a charge against an employer with no history of labor

problems.” Ours, however, is not that case. See supra p. 12 n.11. In cases like

this one, where employees participating in an active organizing campaign

allege coercion based on a non-joking statement from an employer with a

history of ULPs, courts have never required evidence of subjective employee

coercion. I would decline Tesla’s invitation to be the first.

At bottom, this is far from “the most rare and unusual case[]” where

we will “conclude that a finding of fact made by the [NLRB] is not supported

by substantial evidence.” Flex Frac Logistics, L.L.C., 746 F.3d at 208 (citing

Merchs. Truck Line, Inc., 577 F.2d at 1014 n.3). When an employer threatens

to do something that is only within its power, employees will take their

employer seriously because their livelihoods are on the line. See Gissel, 395

U.S. at 617 (“[T]he economic dependence of the employees on their

employers, and the necessary tendency of the former, because of that

relationship, to pick up intended implications of the latter that might be more

readily dismissed by a more disinterested ear.”). That rings true, especially

when, as here, the employer makes that statement during a heated union

campaign and when the employer has a history of committing labor violations

(Tesla acquiesces in seven other labor violations in this case alone). I would

conclude that substantial evidence supported the NLRB’s finding that

Musk’s May 20, 2018, tweet was a threat to unilaterally rescind stock options

if employees unionized.

IV

Despite “assum[ing] without deciding that Musk’s tweet” was a

ULP, the plurality proceeds to vacate the NLRB’s order directing Musk to

delete the offending tweet because the remedy is novel and violative of the

First Amendment. Ante, at 6–8. Respectfully, both arguments are misplaced.

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First, in Section 10(c) of the NLRA, Congress gave the NLRB broad

remedial authority to order violators “to cease and desist” from their ULPs

and “take such affirmative action” as will “effectuate the policies of” the

NLRA. See 29 U.S.C. § 160(c). The Supreme Court and our court apply a

very liberal standard when reviewing challenges to the NLRB’s choice of

remedy. The NLRB’s choice of remedy “must be upheld unless it can be

shown that the board either abused its discretion or exceeded its statutory

authority.” NLRB v. Kaiser Agric. Chem., 473 F.2d 374, 382 (5th Cir. 1973).

“The close relationship between labor policy and choice of remedy, coupled

with the board’s competence and expertise in the field of labor relations,

dictate that the board’s judgment [in fashioning a remedy] be given ‘special

respect by reviewing courts.’” Id. (quoting Gissel, 395 U.S. at 612 n.32).

“And, ‘it is for the Board not the courts to determine how the effect of prior

unfair labor practices may be expunged.’” Franks Bros. Co. v. NLRB, 321

U.S. 702, 704 (1944) (quoting Int’l Ass’n Machinists v. NLRB, 311 U.S. 72,

82 (1940)).

Beyond a generic argument doubting the source of the NLRB’s

remedial authority, 14 neither Tesla nor the plurality bother to articulate why

they think Congress excluded from the NLRB’s authority the ability to order

deletion of a continuing, threatening, coercive, and therefore NLRA-

violating tweet posted by a company’s CEO. “Quite early on, the Court

established that ‘the relief which the statute empowers the Board to grant is

_____________________

14

Tesla spills significant ink questioning the source of the NLRB’s remedial au-

thority. The answer is a simple one. Congress gave the NLRB the authority (and the task)

of “devising remedies to effectuate the policies of the Act” in 29 U.S.C. § 160(c). NLRB

v. Seven–Up Bottling Co., 344 U.S. 344, 346 (1953). While Tesla and the plurality clearly

disagree with Congress’s policy-making decision to give the NLRB wide-ranging remedial

authority, those kinds of policy judgments, under our separation of powers, come from

Congress and the President, not judges.

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to be adapted to the situation which calls for redress.’” Sure-Tan, Inc. v.

NLRB, 467 U.S. 883, 900 (1984) (first quoting NLRB v. MacKay Radio & Tel.

Co., 304 U.S. 333, 348 (1938); and then citing D. McDowell & K.

Huhn, NLRB Remedies for Unfair Labor Practices 8–15

(1976)). “The congressional determination to draft section 10(c) in indefinite

language rather than to formulate preordained penalties for each offense [was

designed to] allow[] the Board to set the tenor of its own authority by

imaginative and specific treatment of the unique circumstances surrounding

each unfair practice.” See Dennis M. Flannery, The Need for Creative Orders

Under Section 10(c) of the National Labor Relations Act, 112 U. Penn. L.

Rev. 69, 70 (1963). Given that the use of Twitter to commit labor violations

is itself relatively unprecedented, the imaginativeness of the order to delete a

tweet does not mean that the NLRB lacks the authority to order such a

remedy.

Any suggestion that the NLRB’s broad authority to fashion remedies

excludes ordering Tesla to direct Musk to delete a threatening tweet (a

permanently standing labor violation) would render the NLRB impotent to

effectuate the NLRA in the face of employers’ use of social media. Because

there is no way to know precisely who saw or will see the permanent record

of Musk’s tweet, it would be left in place as a constant reminder to employees

of the vulnerability of their stock options and perhaps other fringe benefits to

unilateral recission by Tesla. The NLRB’s deletion remedy remains sound

even though Musk attempted to clarify days later that his earlier tweet was

not intended by him or Tesla as a threat to take away employees’ stock

options. An NLRB remedy “must dispel, compensate for, or at least

neutralize, the frustrating effects of persistent illegal activity.” J.P. Stevens &

Co. v. NLRB, 417 F.2d 533, 541 (5th Cir. 1969). The NLRB is not required to

assume that after-the-fact assertions, buried down-thread or sprinkled in

different Twitter threads, would have reached and changed the impression

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of every Tesla employee who read the earlier offending tweet prior to the

election. Accordingly, the NLRB’s remedy order is neither in excess of its

broad statutory authority nor an abuse of discretion warranting remand under

our highly deferential standard of review.

Second, there is no First Amendment issue posed by the deletion

remedy because, contrary to the plurality’s naked assertion, Musk’s coercive

tweet was not “constitutionally protected speech.” 15 Ante, at 8. While the

First Amendment broadly states that “Congress shall make no law . . .

abridging the freedom of speech,” U.S. Const. amend. I, the Supreme

Court has never accepted the view that freedom of speech and association

are “‘absolutes.’” Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 (1991).

“[T]he First Amendment does not protect all speech, nor has it ever. ‘There

are certain well-defined and narrowly limited classes of speech, the

prevention and punishment of which have never been thought to raise any

Constitutional problem.’” Bailey v. Iles, 87 F.4th 275, 283 (5th Cir. 2023)

(quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942)); cf.

Herceg v. Hustler Mag., Inc., 814 F.2d 1017, 1020 (5th Cir. 1987) (“The

Supreme Court has recognized that some types of speech are excluded from,

or entitled only to narrowed constitutional protection.”).

Relevant here, the Supreme Court has consistently held that the First

Amendment does not protect threatening, coercive employer speech to

employees in the labor organization election context—the precise category

of speech Musk disseminated via Twitter. In NLRB v. Virginia Electric &

_____________________

15

The plurality misrepresents FDRLST Media, LLC, 35 F.4th at 126, as vacating

the NLRB’s tweet deletion remedy because the remedy was violative of the First Amend-

ment. Ante, at 8. The Third Circuit vacated the NLRB’s tweet deletion order not because

the remedy was improper, but rather because the “facetious and sarcastic tweet” at issue

was not a labor violation in the first place. FDRLST Media, LLC, 35 F.4th at 127.

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Power Co., the Supreme Court took up a challenge to the NLRB’s

determination that the posting of an anti-union bulletin was a ULP from

which the employer could be ordered to “cease and desist.” 314 U.S. 469,

475–77 (1941). The Virginia Electric Court noted that the NLRA did not

prohibit an employer “from expressing its view on labor policies or

problems” unless the employer’s speech “in connection with other

circumstances [amounts] to coercion within the meaning of the Act.” Id. at

477. By remanding for additional factfinding, the Court made clear that the

mere presence of expression did not protect ULPs under the First

Amendment: “The mere fact that language merges into a course of conduct

does not put that whole course without the range of otherwise applicable

administrative power. In determining whether the Company actually

interfered with, restrained, and coerced its employees the Board has a right

to look at what the Company has said as well as what it has done.” Id. at 478.

On remand, the NLRB (its membership by that point fully changed) found

that the employer’s “messages, whatever their significance when viewed

standing alone, plainly cannot be regarded as mere expressions of the

employer’s opinion,” and that “the posting of the bulletin was an integral

part of the respondent’s conduct, and as such, interfered with, restrained,

and coerced the respondent’s employees in the exercise of the rights

guaranteed in Sec. 7 of the Act,” a conclusion left undisturbed by subsequent

appeals. Va. Elec. & Power Co., 44 NLRB 404, 428, 442 n.22 (1942), enforced

by Va. Elec. & Power Co. v. NLRB, 132 F.2d 390, 396 (4th Cir. 1942), aff’d,

319 U.S. 533 (1943). Just four years later, in Thomas v. Collins, the Court

framed Virginia Electric as “recogniz[ing] that employers’ attempts to

persuade to action with respect to joining or not joining unions are within the

First Amendment’s guaranty. . . . When to this persuasion other things are

added which bring about coercion, or give it that character, the limit of the

right has been passed.” 323 U.S. 516, 537–38 (1945).

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The principles announced in Virginia Electric and Collins were applied

by the Court in NLRB v. Gissel Packing Company, 395 U.S. 575 (1969). At

issue in Gissel were an employer’s written and spoken anti-union statements.

395 U.S. at 619. In considering a First Amendment challenge, the Supreme

Court emphasized that an employer’s “free speech right to communicate his

views to his employees” is “firmly established.” Id. at 617. Still, any

assessment of employer expression “must be made in the context of its labor

relations setting,” where “an employer’s rights cannot outweigh the equal

rights of the employees to associate freely.” Id. “[A]ny balancing of those

rights,” the Court explained, “must take into account the economic

dependence of the employees on their employers, and the necessary

tendency of the former, because of that relationship, to pick up intended

implications of the latter that might be more readily dismissed by a more

disinterested ear.” Id. The Court went on to hold that an employer’s coercive

speech falls “outside the protection of the First Amendment and 8(c).” Id.

at 579.

Further still, in Chamber of Commerce v. Brown, 554 U.S. 60 (2008),

relying on Virginia Electric, Collins, and Gissel, the Court again found that free

debate is not without limits. In that case, the Court found that California laws

regulating employer speech within a zone protected and reserved for market

freedom were preempted by the NLRA. Relevant to Musk’s tweet, in laying

out its preemption analysis, the Court emphasized that the NLRA

“implements the First Amendment” and demonstrates “congressional

intent to encourage free debate on issues dividing labor and management.”

Id. at 66–67 (citations omitted). The Supreme Court found that only

noncoercive employer speech about unionization is protected by the First

Amendment. Id. And our own sturdy precedent conforms with these

holdings. See Riley-Beaird, Inc., 681 F.2d at 1086 (recognizing that the issue

of whether speech is protected under the First Amendment is the same as

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whether it constituted a threat in violation of the NLRA—because the First

Amendment does not protect that type of speech—so, “the issue before us

is not where to draw the line separating protected from unprotected speech.

That line is settled. The only issue is whether the Board correctly determined

that [Musk]’s conduct constituted a violation of section 8(a)(1)”).

Together these cases show that the First Amendment protects to a

great degree an employer’s right to speak out against union representation of

its employees, but the First Amendment does not grant employers carte

blanche to use their speech to commit labor violations. For the reasons stated

earlier, substantial evidence supported the NLRB’s finding that Musk used

his Twitter account to threaten to unilaterally deprive unionizing employees

of stock option benefits. Even the plurality “assume[s] without deciding that

Musk’s tweet violated the NLRA.” Ante, at 7. Faithfully applying Virginia

Electric, Thomas, Gissel, and Chamber of Commerce, which we must as an

inferior appellate court, the First Amendment does not protect Musk’s

coercive speech, regardless of whether it is uttered on Twitter, in a

newspaper, or on the factory floor. See, e.g., NLRB v. Laredo Coca Cola

Bottling Co., 613 F.2d 1338, 1341 (5th Cir. 1980) (affirming the NLRB’s

finding of retaliatory threat that employer delivered in the form of quotation

to a newspaper); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 326

(2010) (holding that “[w]e must decline to draw, and then redraw,

constitutional lines based on the particular media or technology used” by a

particular speaker). Given that Musk’s coercive speech was unprotected, the

NLRB’s subsequent tweet deletion order—a remedy that has ample

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historical precedent 16—poses no First Amendment issue. 17 See Laurence

H. Tribe, American Constitutional Law (2d ed. 1988) § 12–37,

_____________________

16

See, e.g., Alexander v. United States, 509 U.S. 544, 550 (1993) (authorizing a court

order to seize and destroy books, magazines, and films from a person convicted of an ob-

scenity law without any finding that those materials were obscene or otherwise unprotected

by the First Amendment); Balboa Island Vill. Inn, Inc. v. Lemen, 40 Cal. 4th 1141, 1155–56,

156 P.3d 339, 349 (Cal. 2007), as modified (Apr. 26, 2007) (holding that a trial court had

authority to require an individual Yelp user to delete speech on the platform because the

speech was defamatory and, thus, unprotected by the First Amendment); Kinney v. Barnes,

443 S.W.3d 87, 93 (Tex. 2014) (permitting a court order “to remove [defamatory] state-

ments from . . . websites . . . upon a final adjudication that the statements are defamatory”);

Glennon v. Rosenblum, 325 F. Supp. 2d 1255, 1269 (N.D. Ala. 2018) (ordering websites car-

rying a defendant’s defamatory story to delete it from their internet platforms). The plu-

rality says that only “non-speech material” can be destroyed. Ante, at 7. But the case cited

for this proposition rejects precisely this “simplistic, all-or-nothing-at-all approach to First

Amendment protection.” R.A.V. v. City of St. Paul, 505 U.S. 377, 384 (1992). R.A.V. ex-

plained that certain “areas of speech can, consistently with the First Amendment, be reg-

ulated because of their constitutionally proscribable content (obscenity, defamation, etc.)—not

that they are categories of speech entirely invisible to the Constitution.” Id. at 383 (empha-

sis in original). As with fighting words or true threats, remediation of employer coercion

under the NLRA is permissible because—though it may travel through the channels of

speech—such coercion is unprotected as an “element of communication.” See id. at 386.

It strains credulity to suggest that the Virginia Electric Court would have viewed the

NLRB’s cease and desist order to be unconstitutional if it specifically required the company

to take down intimidating bulletins in the workplace rather than refrain from posting them.

Does an employer or a proprietor or a landlord have similar First Amendment immunity

when posting a notice that those of the wrong sex or race or age have no place on its prem-

ises, so long as it does so before any of the civil rights laws are enforced against it?

The plurality’s unprecedented First Amendment simplification aside, it is not

clear to me that this case would even fall within the ambit of such a dubious rule. The re-

circulation of messages on Twitter is “the product of a wealth of choices about whether—

and, if so, how—to convey posts,” distinct from the speaker’s own expression in the first

instance. Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2405 (2024). Such continuing recircu-

lation on Twitter’s public interface, not any specific act of expression stored on Twitter’s

servers, is what is targeted here. See, e.g., Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum.

Rels., 413 U.S. 376, 388 (1973) (“Discrimination in employment is not only commercial

activity, it is illegal commercial activity under the Ordinance. We have no doubt that a

newspaper constitutionally could be forbidden to publish a want ad proposing a sale of nar-

cotics or soliciting prostitutes. . . . The illegality in this case may be less overt, but we see

no difference in principle here.” (footnote omitted)). Options may be available to the

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pp. 1054–1055 (“Once specific expressional acts are properly determined to

be unprotected by the first amendment, there can be no objection to their

subsequent suppression or prosecution.”).

V

Finally, I would uphold the NLRB’s finding that Tesla terminated

Ortiz for not divulging information about protected union activities during an

interrogation in violation of Section 8(a)(1) and (a)(3) of the NLRA.

Section 8(a)(3) of the NLRA makes it a ULP for an employer to

discriminate “in regard to hire or tenure of employment . . . to encourage or

discourage membership in” a union. See 29 U.S.C. § 158(a)(3). Such

discrimination interferes with Section 7 rights, so it also violates Section

8(a)(1). See Metro. Edison Co. v. NLRB, 460 U.S. 693, 698 n.4 (1984); 29

U.S.C. § 158(a)(1). Thus, “an employer violates section 8(a)(3) and (1) of the

Act by discharging employees because of their union activity.” NLRB v.

ADCO Elec. Inc., 6 F.3d 1110, 1116 (5th Cir. 1993). While an employer has a

legitimate right to investigate “facially valid complaints of employee

misconduct, including complaints of harassment,” the NLRA also protects

_____________________

NLRB that address the first imperative without running afoul of the plurality’s view of the

second. Because we remand, the NLRB may consider potential remedies that would allow

posts to be preserved (which is to say, not “deleted”) without continuing their injurious

recirculation, such as allowing a post to be downloaded to a private archive or copied to a

private account before removal, or enabling some posts to be made private while an account

is otherwise maintained as public.

17

The plurality invokes the adage of counter-speech, arguing that “‘the remedy’

for bad speech, after all, should be ‘more speech, not enforced silence.’” Ante, at 6–7 (quot-

ing Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring)). The plu-

rality goes on to concede that deletion can be a proper remedy for speech that falls outside

of the First Amendment’s protection. Id. at 7. It is precisely because Musk’s coercive

speech is unprotected that the NLRB’s deletion order does not offend the First Amend-

ment.

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an employee’s right to keep his or her union activities confidential, even if

that means giving evasive or untruthful answers in response to an employer’s

questions that an employee reasonably believes are inquiries into protected

union activity. Fresenius USA Mfg., Inc., 362 NLRB 1065, 1065 (2015);

Paragon Sys., Inc. & Arthur J. Blake, 362 NLRB 1561, 1565 (2015); Consol.

Diesel Co. v. NLRB, 263 F.3d 345, 353-54 (4th Cir. 2001).

The NLRB balances those two rights through the following rule: If an

employee has a “reasonable basis” for believing that her employer is

attempting to uncover protected union activity, and if the questioning

employer has no legitimate business justification for doing so, then an

untruthful or evasive employee response concerning that activity is not a

lawful basis for discharge. See, e.g., Tradewaste Incineration, 336 NLRB 902,

907 (2001); St. Louis Car Co., 108 NLRB 1523, 1525–26 (1954); Paragon Sys.,

Inc., 362 NLRB at 1565; accord, e.g., Onyx Env’t Servs., L.L.C., 336 NLRB

902, 907 (2001). One way our court has measured the “reasonableness” of

an employee’s belief is by asking whether the employee’s false or “evasive

statement[] . . . in response to [employer] questioning [is] ‘inextricably

involved’ with the employee’s protected conduct.” Cordua, 985 F.3d at 429

(quoting NLRB v. Roney Plaza Apartments, 597 F.2d 1046, 1051 (5th Cir.

1979)). The NLRB’s balancing rule recognizes employees’ “normal

reluctance to divulge” protected activity to employers, who often use such

information to retaliate. Aladdin Indus., Inc., 147 NLRB 1392, 1407 (1964).

The rule also aligns with the well-established principle that untruthful

answers to questioning about union activity are evidence of employer

coercion—not employee misconduct. See Sturgis Newport Bus. Forms, Inc. v.

NLRB, 563 F.2d 1252, 1256 (5th Cir. 1977); Jays Foods, Inc. v. NLRB, 573

F.2d 438, 444 (7th Cir. 1978). If such answers justified discharge, an

employer could easily rid itself of union supporters by asking questions about

protected activity likely to provoke evasion or untruthfulness.

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Applying these standards here, Ortiz’s false statement—responding

“I don’t know” to Gecewich asking where the Workday screenshots came

from—is “inextricably involved” with Ortiz’s protected conduct. The

NLRB, in adopting the ALJ’s finding, described Ortiz’s protected concerted

activity as all of the actions that Ortiz and Moran took “[u]pon learning that

employees testified on behalf of Tesla during a union-sponsored California

State Assembly bill[.]” This includes: (1) Ortiz asking Moran to help him

learn if these individuals were current employees; (2) Moran then searching

Workday system to search for these employees; (3) Moran sending the

screenshots of their Workday profiles to Ortiz; and (4) Ortiz then posting the

screenshots with his comments on the union employees’ private Facebook

page. 18 Tesla concedes that it interviewed Ortiz about these protected union

activities, during which interview Ortiz lied about knowing the source of the

screenshots, the stated reason for Ortiz’s termination. Ortiz’s false

statement in response to Gecewich’s question obviously meets the

“inextricably involved” standard set by Roney Plaza Apartments, 597 F.2d at

1051, and reaffirmed by Cordua, 985 F.3d at 429. It follows, then, that Ortiz

“reasonably understood that Gecewich was trying to learn about his

protected activities when [Gecewich] repeatedly asked who sent him the

Workday profile screenshots.” Ortiz was “scared to death” that he would be

discharged and did not want to get Moran in trouble. And for good reason:

that is exactly what happened—Ortiz was fired, and Moran was disciplined.

Nor did Tesla have an alternative lawful motive to question Ortiz.

Tesla argues that it was faced with a facially valid complaint of misconduct.

“[O]ne of the employees targeted in the Facebook post (Pratt) submitted it

to a member of the HR department (Hedges) and said he felt harassed and

_____________________

18

Tesla does not dispute this NLRB finding and, therefore, it has waived the issue.

See Flex Frac Logistics, L.L.C., 746 F.3d at 208.

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targeted by Ortiz.” That report eventually made its way to Gecewich, who

apparently “understood that Pratt felt targeted and harassed” because of the

Facebook post. Tesla relies on the precept that an employer may question an

employee about their protected union activity when the employer has a

“legitimate business justification” for doing so, United Servs. Auto. Ass’n v.

NLRB, 387 F.3d 908, 916 (D.C. Cir. 2004), and the precept that “employers

have a legitimate business interest in investigating facially valid complaints of

employee misconduct, including complaints of harassment.” Fresenius USA

Mfg., Inc., 362 NLRB at 1065.

Substantial evidence supported the NLRB’s factual finding that

Tesla’s questioning of Ortiz was not part of a facially valid complaint of

employee misconduct. Specifically, the ALJ found that the initial complaint

of harassment from Pratt to Hedges, the Tesla human resources official who

had invited Pratt to testify against the UAW legislation, and Hedges’s

complaint to Gecewich, was disingenuous given the content of Pratt’s text

messages to Hedges. “Pratt complained that Ortiz’ Facebook post made him

feel singled out, but this claim [wa]s disingenuous since he forwarded the

Facebook post to Hedges with the remark, ‘Looks like we got under

someone’s skin’ with a smiling face and eyes and rosy cheeks emoji. This

addition of the emoji does not reflect a concern of harassment.” When

Hedges responded by asking if the post was on Facebook, Pratt replied “Yea

lol.” Gecewich was shown a copy of this text exchange. Pratt later explained

to the investigator, according to the investigator notes, that he sent the post

to Hedges “more as a we are getting a rise out of people.”

The ALJ further based its finding that Pratt’s claim of harassment was

not a facially valid complaint of employee misconduct on: (1) other ULPs

established in the record (including a prior instance of Tesla improperly

interrogating Ortiz about his union activities); (2) Gecewich’s knowledge of

the context within which the Facebook post and Workday use occurred; and

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(3) Gecewich’s questioning of Ortiz, which was aimed at discovering the

identity of Ortiz’s source and fellow pro-union colleague, Moran—

information that Tesla did not otherwise have a legitimate right to discover,

considering that Tesla had no rule restricting employee use of Workday. In

fact, it is undisputed that Tesla had no rule against employees accessing

Workday at the time it began its investigation into Ortiz, and Tesla does not

contest the NLRB’s determination that it violated the NLRA by disciplining

Moran for accessing Workday in this manner. All of this is substantial

evidence that Tesla had no legitimate business justification to question Ortiz

about his protected union activity. “A court reviewing an agency’s

adjudicative action should accept the agency’s factual findings if those

findings are supported by substantial evidence . . . [and] should not supplant

the agency’s findings merely by identifying alternative findings that could be

supported by substantial evidence.” Arkansas v. Oklahoma, 503 U.S. 91, 112–

13 (1992).

Considering that Ortiz “reasonably understood that Gecewich was

trying to learn about his protected activities” and the substantial evidence

that Tesla had no legitimate business justification to question Ortiz about the

same, the NLRB reasonably found that Ortiz had no obligation to respond

truthfully. Ortiz’s “dishonesty”—that he could not recall who sent him the

Workday screenshots—does “not constitute a lawful reason to discharge

h[im].” United Servs. Auto. Ass’n, 387 F.3d at 916–17 (“There is, then,

substantial evidence in the record to support the Board’s finding that the

employees could reasonably believe that the company had only one objective

in questioning Williams and the other employee: to identify, with certainty,

who had engaged in the protected concerted activity.” (citations omitted)).

Accordingly, Tesla’s assertion that it discharged Ortiz for concealing his

coworker’s union activity constitutes an admission of unlawful motive under

settled law. See ADCO Elec. Inc., 6 F.3d at 1116 (“[A]n employer violates

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section 8(a)(3) and (1) of the Act by discharging employees because of their

union activity.”).

The en banc plurality has no rebuttal to this analysis. Instead, in

another punt, it vacates the NLRB’s Ortiz reinstatement order and remands

for the NLRB to consider that the ultimate decisionmaker, Graminger, was

pro-union, falsely claiming that the NLRB failed to do so the first time

around. Ante, at 9–11. That is error for three independent reasons.

First, that evidence is immaterial to the conclusion that Ortiz was not

required to answer Gecewich’s question truthfully, and, again, Tesla and

Graminger admit they terminated Ortiz because of his “dishonesty” to

Gecewich. That Graminger was purportedly pro-union did not magically give

him a lawful reason to terminate Ortiz when Ortiz was fired for declining to

divulge information about protected union activities during an interrogation.

Second, the ALJ and NLRB took Graminger’s testimony “into

account.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). The

ALJ expressly found that Graminger was “more credible” than the other

witnesses for Tesla. This shows the ALJ considered his testimony, even

though it did not specifically mention his pro-union beliefs. The ALJ

expressly did not credit Graminger’s testimony that Ortiz’s union activity

was never discussed during the meeting about Ortiz because it was “obvious

that all the attendees of the meeting knew that Ortiz was active with the

Union, and it seem[ed] implausible that no one mentioned his union activity

during this meeting especially considering Graminger admitted this was a

‘sensitive case.’” Graminger testified that he asked a senior vice president

(Hochholdinger) whether he knew of the internal investigation “involving

Richard Ortiz, a member of the union.” While Hochholdinger confirmed that

there had been a similar instance where someone was terminated for lying

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during an investigation, 19 the ALJ noted that Graminger “did not know

which Tesla policies Ortiz violated nor did he review any policies” when he

recommended Ortiz’s termination. The record shows that the ALJ fully

considered Graminger’s testimony, identified inconsistencies within his

testimony (specifically concerning discussions of Ortiz’s union activities),

and concluded Ortiz’s termination was motived by anti-union animus. The

NLRB reviewed the entire record and agreed. Remanding for the NLRB to

reconsider Graminger’s testimony second-guesses the NLRB’s credibility

determination and reweighs the evidence, which we are not permitted to do.

Allied Aviation Fueling, 490 F.3d at 378 (“In determining whether the

Board’s factual findings are supported by the record, we do not make

credibility determinations or reweigh the evidence.”).

Third, Graminger made his decision to terminate Ortiz in reliance on

incomplete and inaccurate facts reported to him by Gecewich, who the ALJ

found to be wholly incredible. For example, Gecewich failed to inform

Graminger of the very impetus of Ortiz’s and Moran’s conduct: Pratt’s and

Ives’s public testimony on behalf of Tesla to state legislators in opposition to

a union-sponsored bill. And Gecewich lied to Graminger that Ortiz’s

Facebook post had “leaked some internal information out of Workday

including some telephone number and personal information.” Because these

_____________________

19

Tesla attempts to paint its decision to fire Ortiz in a positive light; specifically, it

characterizes its decision as an effort to treat Ortiz the same as any other Tesla employee.

The devil is in the details. Tesla only previously fired an employee for dishonesty where

that employee, a vice president, lied about his use of a company vehicle, drugs, and alcohol

found in that vehicle (i.e., a misuse of company resources) as well as an improper relation-

ship with another employee. Those facts are worlds apart from Ortiz responding “I don’t

know” when asked who provided him with screenshots containing information from Work-

day that Tesla did not prohibit employees from accessing, especially when Ortiz held a rea-

sonable belief that Tesla was unlawfully interrogating him to learn about his and others’

protected union activities.

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material omissions and misrepresentations tainted Graminger’s ultimate

decision, Tesla may not wash away the substantial evidence of anti-union

animus by pointing to Graminger’s neutrality. NLRB v. Neuhoff Bros.,

Packers, Inc., 375 F.2d 372, 374–75 (5th Cir. 1967); accord NLRB v. Big Three

Indus. Gas & Equip. Co., 579 F.2d 304, 312 (5th Cir. 1978); Charter Commc’ns,

Inc. v. NLRB, 939 F.3d 798, 816 (6th Cir. 2019).

* * *

Because our en banc court should have enforced the NLRB’s orders

across the board, I would deny Tesla’s petition for review and grant the

NLRB’s cross-application to enforce its order. I respectfully dissent from the

plurality’s opinion and judgment.

43