Take the Fifth

Designated for publication

• Tesla, Inc. v. National Labor Relations Board, 21-60285, petition for review of NLRB order
  • per curiam (Elrod, Jones, Smith, Willett, Duncan, Engelhardt, Oldham, Wilson) (Ho, J., recused; Haynes, J., concurring in judgment only); Dennis, J., dissenting (joined by Stewart, Richman, Southwick, Graves, Higginson, Douglas, Ramirez); en banc, labor law, First Amendment
  • After panel opinion affirmed NLRB order finding that tweet by Tesla CEO Elon Musk regarding union-organization efforts was an unlawful threat under the National Labor Relations Act and that Tesla employee Richard Ortiz had been terminated in violation of the NLRA, the en banc Court vacated the NLRB’s order in a “per curiam” opinion (though not actually an opinion “for the Court,” since eight judges joined in the dissent and another judge concurred in the judgment only, leaving this as an 8-1-8 decision) and remanded for further proceedings.
  • The Court held that the NLRB exceeded its authority in ordering Musk to delete his tweet, pretermitting the merits of the question of whether the tweet itself constituted an NLRA violation. “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. Even so, the Board’s speech-deletion order 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.”
  • The Court held that the record lacked substantial evidence to support its order that the terminated employee be reinstated with backpay because the termination was an NLRA violation. Because the termination decision had been submitted by Tesla to an independent decisionmaker, the Court held that “the NLRB failed to consider the contradictory fact that the decisionmaker who authorized Oritz’s firing, Graminger, had no anti-union animus.”
  • Judge Dennis dissented. “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. … 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.”
  • Judge Dennis opined that whether Musk’s tweet could be ordered to be deleted–the First Amendment issue dealt with by the plurality decision–could not be reached without first dealing with the precursor issue of whether the tweet was indeed an NLRA violation (as the deletion order was the remedy for the NLRA finding). He then would hold that the record supports the finding that Musk’s tweet was a “coercive threat” under NLRA analysis. “[B]ecause 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.” He then would find that the deletion order was within the NLRB’s authority: “[I]n 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.” He also rejected the plurality’s First Amendment conclusion: “[T]he 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.” (Citing NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 475–77 (1941), and others).
  • Judge Dennis would also uphold the NLRB’s order to reinstate Ortiz as supported by substantial evidence in the record and by law regarding employees’ right to protect their confidential union-organizing activities from company investigation.

• Republican National Committee v. Wetzel, 24-60395, appeal from S.D. Miss.
  • Oldham, J. (Ho, Duncan, Oldham), election law
  • Reversing district court’s summary judgment in favor of defendant state of Mississippi and associated officials, holding that federal law (“text, precedent, and historical practice”) provides that the “day for the election” of members of Congress and presidential electors “is the day by which ballots must be both cast by voters and received by state officials and that Mississippi’s law that allows for receipt up to five days after election day of ballots that had been cast (i.e., mailed and postmarked) by election day is preempted by federal law. Remanding for further proceedings.
  • The Court held that a ballot is “cast” when “the State takes custody of it.” The Court also held that finality of elections required its holding. “A voter’s selection of a candidate differs from the public’s election of the candidate. Officials tally each voter’s selection and then declare a winner of the election. Those are the not the same thing. And while an individual voter might be able to make his or her selection in private, alone, it makes no sense to say the electorate as a whole has made an election and finally chosen the winner before all voters’ selections are received. That is not to say all the ballots must be counted on Election Day. Even if the ballots have not been counted, the result is fixed when all of the ballots are received and the proverbial ballot box is closed. The selections are done and final. By contrast, while election officials are still receiving ballots, the election is ongoing: The result is not yet fixed, because live ballots are still being received. Although a single voter has made his final selection upon marking his ballot, the entire polity must do so for the overall election to conclude. So the election concludes when the final ballots are received and the electorate, not the individual selector, has chosen.”

Unpublished

• U.S. v. Corona-Galindo, 24-10195, appeal from N.D. Tex.
  • per curiam (Davis, Stewart, Southwick), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• Yan v. Taylor, 24-10288, appeal from N.D. Tex.
  • per curiam (King, Southwick, Engelhardt), § 1983
  • Affirming dismissal of plaintiff’s pro se failure-to-prosecute claim.

• OneMain Financial Services, Inc. v. Boyer, 24-10456, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas), foreclosure
  • Dismissing as frivolous appeal from grant of relief to bank on claims arising from foreclosure.

• Raymond v. UNUM Group, 23-30237, c/w 23-30498, appeal from M.D. La.
  • per curiam (Dennis, Southwick, Ho), insurance
  • Affirming summary judgment in favor of insurer on claims arising from denial of disability insurance benefits.

• U.S. v. Luna-Soto, 24-40032, appeal from S.D. Tex.
  • per curiam (Jones, Dennis, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Garrett, 24-40237, appeal from E.D. Tex.
  • per curiam (Southwick, Graves, Engelhardt), criminal, sentencing
  • Dismissing under plea agreement appeal waiver an appeal from the 60-month sentence on a guilty-plea conviction of carrying a firearm during and in relation to a drug-trafficking crime.

• U.S. v. Emerson, 23-50905, c/w 23-50906, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Duncan), criminal, search and seizure
  • Dismissing as moot appeal from revocation of supervised release; and affirming conviction of transportation of illegal aliens, upholding denial of motion to suppress.