Elon Musk calls himself a “free speech absolutist,” insisting that freedom of expression is the “bedrock of a functioning democracy.” His impulsive bid to buy Twitter was motivated, he claimed, by a desire to let users say whatever they want within the confines of the law. He would invite Donald Trump—who is currently using social media to promote QAnon—back onto the platform, so deep is his commitment to freedom of speech.
On Monday, however, the National Labor Relations Board revealed that Musk’s ostensible devotion to absolute freedom of expression ends at the door of his Tesla factories. In a major ruling, the NLRB held that Tesla violated employees’ free speech rights by suppressing their ability to support a union drive at work. Musk’s company was so eager to quash free expression, the agency found, that managers created dishonest and pretextual justifications to punish workers who conveyed a pro-union message. The ruling, alongside other efforts to censor Tesla employees, paints a starkly different picture of Musk than the one he crafts online: that of a CEO who allows censorship to stop workers from freely associating with a union.
We’ve long known about several legal tools that Tesla uses to silence potential critics: indefinite non-disparagement and non-disclosure agreements foisted on former employees; mandatory arbitration clauses that stop workers from petitioning a court for redress; sharp limits on reporters’ ability to access and publish information about the company. Monday’s decision illustrated another tactic: establishing strict, arbitrary dress codes to prevent workers from wearing apparel that supports a union.
The case began in 2017, during a United Auto Workers’ organizing campaign at the Tesla plant in Fremont, California. The factory’s dress code required certain employees who assemble vehicles to wear black shirts provided to them, which featured the Tesla logo, or their own black clothing. This code was not consistently enforced until several workers began to wear black shirts printed with the pro-union message “Driving a Fair Future at Tesla” and “UAW.”
At that point—mysteriously—the company began to enforce the policy very strictly. It also added a rule that workers could no longer wear shirts with any emblem except Tesla. Supervisors suddenly scrutinized apparel to ensure compliance and threatened to penalize any violators. The company claimed that the new logo ban was necessary to ensure that shirts did not cause “mutilations” to the vehicles (though managers later testified that they had never heard of a logo causing a mutilation). Employees argued that rule interfered with their right, under the National Labor Relations Act, to form a union—a right that includes the ability to wear “union insignia” on the job. (Union advocates allege that Tesla violated federal labor law in other ways, including firing an organizer and threatening to cut stock options for union members.)
Tesla is not the first American company to crack down on union organizing under the pretext of enforcing a dress code. The NLRB has confronted this issue before, though its decisions swing back and forth depending on which party controls the agency. In 2010, when Democrats led it, the NLRB held that companies could not use a dress code to ban pro-union shirts absent “special circumstances” that justified the uniform policy, like safety hazards. Then, under Trump, the agency flipped back into Republican control, and gave companies much more leeway to suppress employee speech. In 2019, Trump’s majority held that employers could use a dress code to limit pro-union insignia as long as the policy was neutral on its face and bolstered by some “legitimate justification.” This controversial decision ensured that corporations could stifle pro-union messages on clothing so long as their lawyers crafted a minimally plausible pretext.
In 2021, Joe Biden flipped the NLRB back into Democratic hands, appointing new members with close ties to organized labor. (That’s how NLRB appointments work: Republicans appoint management-side lawyers to crush unions; Democrats appoint union-side lawyers to fight management.) And on Monday, the new liberal majority overruled the 2019 precedent and restored workers’ broad right to wear pro-union clothes, buttons, and other “insignia” at work. “The display of union insignia has proven to be a critical form of protected communication,” the majority explained. Employees have a right to show their commitment to the union on the job. Once they’re at the bargaining table, employees may wear shirts, buttons, and stickers to express their positions. In between negotiations, they may use insignia to highlight workplace conditions in need of improvement. This speech lies at the heart of the National Labor Relations Act, the federal law guaranteeing the right to unionize and bargain collectively.
To protect workers’ free speech, the majority concluded, the burden falls on employers to prove that “special circumstances” justify banning this form of expression through a dress code. If they meet this burden, employers must then show that the policy is “narrowly tailored” to address their concerns. Unsurprisingly, Tesla flunked that test. Managers cited no proof that shirts with union logos would “mutilate” cars. In fact, no one at the company could not even explain how these logos might, in theory, cause any damage to vehicles. No “special circumstances” justify the stringent anti-union dress code. So Tesla must notify workers that they are allowed to wear pro-union shirts and cease enforcing the policy in any way that discriminates against organizers. And no other company may impose a similar dress code without a very good reason.
The NLRB’s decision is especially relevant in light of Musk’s demands that Twitter allow all speech unless it is literally illegal under U.S. law. The First Amendment does not apply to private companies, including Twitter and Tesla. Yet Musk asserted that, to preserve a culture of free speech, Twitter should protect a maximum amount of expression, safeguarding the free exchange of ideas. All the while, there was no culture of free speech in his own factories.. It appears that, like the political party he increasingly supports, Musk’s allegiance to free expression does not extend to troublesome speech that he’d prefer to stamp out.
