|Tuesday, 17 May 2011 15:17|
On April 21, 2011, the National Labor Relations Board ("NLRB") Associate General Counsel, Barry Kearney, issued a memorandum recommending that a reporter's charge of unlawful termination as a result of inappropriate Tweets be dismissed in the case of Lee Enterprises, Inc., d/b/a Arizona Daily Star. The NLRB stated that the reporter's discharge did not violate the National Labor Relations Act as the reporter's conduct was not protected and concerted, moreover, it did not relate to the terms and conditions of employment or seek to involve other employees in issues related to employment.
The reporter opened a Twitter account and began Tweeting in 2009 at the urging of his employer, the Arizona Daily Star. He linked his employer's website to his account and indicated in his bio that he was a reporter for the Daily Star. Early in 2010, the reporter Tweeted that "The Arizona Daily Star's copy editors are the most witty and creative people in the world. Or at least they think they are." As a result, he was called to a meeting with his human resources director and the managing editor of the paper. At that time, he was advised that he was prohibited from airing his complaints about the Daily Star in any public forum.
Subsequently, the reporter ceased Tweeting about the paper itself, but posted various other Tweets the paper found inappropriate, including: "What?!?!? No overnight homicide? WTF? You're slacking Tucson," and "Hope everyone's having a good Homicide Friday as one Tucson police officer called it." Finally, on September 21, 2010, a TV station's Tweet was Re-Tweeted on the reporter's website saying "Drug Smuggler tries to peddle his way into the U.S.," to which the reporter Tweeted "Um, I believe that's PEDAL. Stupid TV people."
The Daily Star again called the employee in for a meeting at which they advised him that they believed the Twitter account to be a work Twitter account and that he was drawing negative attention to the Daily Star. The reporter was subsequently suspended for three days then terminated.
In recommending dismissal, the NLRB noted that the reporter was discharged for posting inappropriate and unprofessional Tweets even after having been warned. However, the associate general counsel also commended that may of the statements made by the employer could be interpreted to prohibit activities that are protected under Section 7 of the National Labor Relations Act. Specifically, the associate general counsel stated:
"Although the statements arguably constituted unlawful restrictions of the charging party's own Section 7 activities, it would not effectuate the purposes and polices of the act to issue a complaint where the statements were directed to a single employee who was lawfully discharged."