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A newspaper publisher did not violate the National Labor Relations Act when it fired a reporter for writing inappropriate and offensive postings on a work-related Twitter account, the National Labor Relations Board Division of Advice concluded in a memorandum to the board's Phoenix regional office (Lee Enters. Inc. d/b/a Arizona Daily Star, NLRB Div. of Advice, No. 28-CA-23267, 4/21/11 [released 5/10/11]).
Rejecting the former reporter's claim that his firing violated Section 8(a)(1) of the NLRA by interfering with the right of employees to engage in concerted activity for their mutual aid or protection, Associate General Counsel Barry J. Kearney said tweets commenting on local homicides and on a posting on a television station's Twitter feed did not involve employment issues and were not protected under the federal labor law.
The memorandum also said even if the management of the Arizona Daily Star made statements suggesting an overbroad prohibition of online comments about the newspaper, the advice division had found no case in which the members of NLRB “held discipline pursuant to an unlawful rule to be unlawful where the underlying conduct was itself unrelated to protected, concerted activity.”
According to the memorandum, Lee Enterprises Inc. owns and operates regional newspapers including the Arizona Daily Star, published in Tucson, Ariz.
The reporter, whose name was not given in the advice memorandum, had worked for the newspaper for more than 10 years when he was fired because of the content of some of the messages he posted on Twitter.
According to the memorandum, in 2009 the newspaper began to encourage reporters to use Twitter and other social media so that stories would be seen by people who were not regular readers, in hopes of driving traffic to the Daily Star website.
The reporter set up a Twitter account with a screen name, password, and content that he controlled. He identified himself as a Daily Star reporter in the biography section of his Twitter account, and included a link to the newspaper's website. His tweets sometimes referred readers to the Daily Star, but his Twitter messages did not appear on the newspaper's own Twitter feed.
In early 2010, the reporter tweeted a comment that the Daily Star's copy editors were “the most witty and creative people in the world” or “at least they think they are.” The paper's human resources director questioned the reporter about the message but admitted the Daily Star had not yet adopted a social media policy. About a week later, the memorandum noted, the newspaper's managing editor told the reporter he was prohibited from airing his grievances or commenting about the paper in any public forum.
The reporter thereafter avoided making comments about the Daily Star but posted irreverent tweets in August and September 2010 about crime in Tucson. On Sept. 21, 2010, the reporter criticized a local TV station's tweet that used “peddle” when it should have said “pedal” and called TV employees “[s]tupid.” The TV station's web producer sent an e-mail to the Daily Star complaining that the post was “unprofessional.”
Daily Star editors had several conversations with the reporter and placed him on a three-day suspension, but on Sept. 30, 2010, the paper's publisher informed him that he was being fired because he had disregarded warnings “to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company.”
The reporter filed an unfair labor practice charge, arguing that he was improperly fired pursuant to an overbroad and illegal oral “rule” against public comment, but the advice division disagreed.
The reporter was not engaged in NLRA-protected activity when he posted tweets about Tucson and the local TV station, the memorandum observed, because the employee's conduct on those occasions “did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.”
Text of the advice memorandum can be accessed at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8grnw5.
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