NLRB Division of Advice: Employer Lawfully Discharged Employee For Inappropriate Tweets.
The NLRB’s Division of Advice has made a distinction between statements about working conditions (protected concerted activity) and personal gripes (not protected concerted activity). The NLRB’s Division of Advice is responsible for issuing opinions on difficult or novel labor issues. Social media disputes have recently been added to a list of matters that must be submitted to the Division of Advice before a decision on whether to file a complaint is made at the regional level. In an April 2011 memorandum from the NLRB’s Division of Advice, the NLRB found that the Arizona Daily Star newspaper did not violate the NLRA when it terminated a reporter for writing inappropriate and offensive comments on his personal Twitter account because the Twitter postings did not involve protected concerted activity under Section 7 of the NLRA. See Lee Enterprises, Inc., d/b/a Arizona Daily Star, Case 28-CA-23267 (April 21, 2011).
According to the NLRB’s Advice Memorandum, the Daily Star encouraged its reporters to use Twitter and to determine how social media tools could be used to disseminate information to the public, but had no formal social media policy. A “crime and safety belt” reporter for the Daily Staropened a Twitter account, started following co-workers and supervisors on Twitter, identified himself on his Twitter profile as a reporter for the Daily Star, and included a link to the Daily Star‘s website. In early 2010, the reporter posted the following tweet commenting on a series of sports headlines: “The Arizona Daily Star’s copy editors are the most witty and creative people in the world. Or at least they think they are.” A week later, after a meeting with the human resources director and later with several other managing editors, the Daily Star prohibited the reporter from “airing his grievances or commenting about the Daily Star in any public forum.”
The reporter initially complied with the newspaper’s request and refrained from making public comments about the Daily Star. That did not last. In August 2010, the reporter again began tweeting the following:
· “You stay homicidal, Tucson. See Star Net for the bloody deets.”
· “What?!?!?! No overnight homicide? WTF? You’re slacking Tucson.”
· “Suggestion for new Tucson-area theme song: Droening [sic] pool’s ‘let the bodies hit the floor.'”
· “Hope everyone’s having a good Homicide Friday, as one Tucson police officer called it.”
· “My discovery of the Red Zone channel is like an adolescent boy’s discovery of his … let’s just hope I don’t end up going blind.”
· In response to a misspelling in a tweet by a Tucson-area television news station: “Um, I believe that’s PEDEL. Stupid TV people.”
The Tucson-area television station took issue with the “stupid TV people” comment, and emailed the Daily Star. Several days later, the reporter was fired for tweeting insensitive, derogatory and inappropriate comments about homicides and for tweeting in other ways that violated the Daily Star‘s “Respectful Workplace Guidelines” and damaged the Daily Star‘s goodwill.
The reporter claimed he was fired for engaging in protected concerted activity in violation of Section 8(a)(1) of the NLRA and that he was disciplined pursuant to an unlawful rule that prevented him “airing his grievances or commenting about the Employer in any public forum,” thus prohibiting certain Section 7 activities. The NLRB Division of Advice disagreed. Instead, it decided that the “inappropriate and offensive” Twitter postings were not protected activities, because they “did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.”
The Division of Advice decided that the Daily Star‘s initial directive to the reporter not to air his grievances in public could be interpreted as an illegal prohibition against activities protected by Section 7. However, since the statement was only made to a single employee and was not considered a new “rule,” and because the Daily Star made its decision to discharge the reporter based on the comments unrelated to the initial directive, the NLRB saw no reason to issue a complaint on that issue.
It appears that, in the NLRB’s view, the Daily Star‘s actions did not violate the NLRA because the tweets leading to the reporter’s termination did not relate to the employee’s terms and conditions of employment. Instead, the tweets were an insensitive commentary on homicide and the intelligence of a local television station. In addition, the tweets did not seek to involve other employees in issues related to employment at the Daily Star. Read the full text by Patricia Nemeth and Erin Behler at Law.com here.