“The complaint is dead on arrival in our view,” and “a no-brainer,” the social media company’s attorney David Broderdorf said Tuesday in opening arguments at a National Labor Relations Board hearing in San Francisco. 

The hearing is about the agency’s first-ever complaint against the company, alleging that its firing of employee Yao Yue violated the federal law prohibiting retaliation for workplace protests. The dispute stems from an episode in November 2022, when Musk had just bought the company, then called Twitter, and ordered workers back to the office. 

According to the complaint issued by the NLRB general counsel’s office, Yue read about Musk telling staff, “If you can physically make it to an office and you don’t show up, resignation accepted.” Yue responded by using the company’s own platform to post a tweet telling fellow workers, “Don’t resign, let him fire you,” and sent a similar message to an internal channel. The company terminated Yue a few days later, in order to punish her and to discourage other workers from taking collective action, according to the complaint.

X didn’t respond to requests for comment about the case. At the hearing, X’s lawyer told the agency judge that Yue was excluded from the law’s protection, because she was legally a supervisor rather than a mere employee, and that regardless, her comments were legally unprotected because they constituted a call for insubordination rather than just a protest against company policy. 

“When they say don’t comply, be fired, or don’t follow this rule, let’s all get fired, that’s insubordination,” Broderdorf said. “Employees have significant rights to complain and to protest and to challenge, as long as they’re not insubordinate.”

In her own opening arguments, the NLRB general counsel office’s attorney Tracy Clark said that Yue was no longer a manager when she made her protest posts, and that there was nothing insubordinate about her anti-resignation message. Yue was demoted as part of Musk’s rapid flattening of the organization’s structure, Clark told the judge. 

“The plain text” of her posts makes clear they weren’t telling people to refuse to follow rules, she told the judge, but rather advising them that it wouldn’t be in their interests to resign. “These posts would not be reasonably construed as a directive to disobey,” she told the judge.

Federal law protects the right of employees to protest and communicate with each other about their working conditions, with or without a union. While Musk has declared himself a “free speech absolutist,” his companies have repeatedly been accused by NLRB prosecutors of violating that law. 

The US 5th Circuit Court of Appeals heard arguments this month about his automaker Tesla Inc.’s appeal of a ruling that it illegally terminated an employee because of his activism. His aerospace company SpaceX sued the NLRB earlier this month, saying the agency’s structure is unconstitutional, after the labor board issued a complaint alleging eight employees were fired over a letter criticizing the billionaire CEO.

The NLRB has authority to order policies changed and fired activists reinstated with back pay, but not to make companies pay punitive damages or hold executives personally liable for wrongdoing. Absent a settlement, whatever the agency judge rules in Yue’s case could be appealed to NLRB members in Washington DC, and from there could also be challenged in federal court.

X’s insubordination argument about Yue is unlikely to convince the current NLRB, said former labor board member Wilma Liebman, who chaired the agency under President Barack Obama.

“I’d be shocked if this board found that to be insubordination,” Liebman said in an email. What the agency tends to consider to be legally-unprotected insubordination is defiance of an order or flagrantly offensive behavior, she said. In contrast, said Liebman, “She is clearly inciting collective action by coworkers, which is protected.”