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Finally, on September 21, Tucson area television news station posted the following tweet on its Twitter feed: “Drug smuggler tries to peddle his way into the U.S.” The Charging Party saw the tweet, reposted it on his Twitter site, and tweeted the following: “Um, I believe that’s PEDAL. Stupid TV people.”

When the television station took issue with this response, the Daily Star’s managing editor again called him into the office and this time told him that his tweets were inappropriate and that he was to refrain from any tweeting until she had had an opportunity to meet with the executive editor and human resources. In prohibiting him from tweeting, the managing editor noted that the charging party’s Twitter screen name and biography referenced that he worked at the Daily Star and had a link to the Daily Star’s website, she considered this to be a work Twitter account, and that he was drawing negative attention to the Daily Star when he made the various tweets about homicides in Tucson. The charging party promptly changed his screen name, deleted some of his supervisors from his list of followers and changed his account settings so that he had to approve anyone before they could view his tweets. Later in September, the charging party was advised of his termination. He also told a couple of co-workers to be careful about what they write on Facebook and Twitter.

The charging party then filed a charge with the NLRB contending that he was disciplined pursuant to an unlawful rule that prohibited certain Section 7 activities. The General Counsel’s office disagreed and recommended that the charge be dismissed. In reaching this conclusion, the General Counsel’s Office noted that The Daily Star did not implement an unlawful rule. Though the General Counsel’s Office acknowledged that “in warning the Charging Party to cease his inappropriate tweets, and then discharging him for continuing to post inappropriate tweets, the Employer made statements that could be interpreted to prohibit activities protected by Section 7, he also noted that those statements did not constitute orally promulgated, overbroad “rules.” Instead, the statements were made solely to the Charging Party in the context of discipline, and in response to specific inappropriate conduct, and were not communicated to any other employees or proclaimed as new “rules.” For example, after the Human Resources Director had met with the Charging Party and warned him to stop making inappropriate comments, and the Charging Party persisted, the Managing Editor called him in and warned him to stop airing his grievances or commenting about the Employer in any public forum. And after the Charging Party persisted in writing his offensive messages, the Managing Editor told him that he was not allowed to tweet about anything work related. Finally, the Charging Party’s termination letter refers to the fact that he was told “to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company.” The General Counsel’s Office stated that “although the statements arguably constituted unlawful restrictions on the Charging Party’s own Section 7 activities, it would not effectuate the purposes and policies of the Act to issue a complaint where the statements were directed to a single employee who was lawfully discharged.”

With respect to the actual discipline and termination of the charging party, the Advice Memorandum states:

We have found no case in which the Board held discipline pursuant to an unlawful rule to be unlawful where the underlying conduct was itself unrelated to protected, concerted activity. In this case, even if the Employer implemented an unlawful rule, the Charging Party was terminated for posting inappropriate and unprofessional tweets, after having been warned not to do so, i.e. for engaging in misconduct. The Charging Party’s conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment. Specifically, after opening a Twitter account and linking it to the Employer’s website, the Charging Party began tweeting inappropriate comments. The Employer warned the Charging Party that his comments were inappropriate, but he ignored the warning and continued to post additional inappropriate tweets while covering his beat as a public safety reporter. Those tweets included: “What?!?!?! No overnight homicide? WTF? You’re slacking Tucson” and “[Exemptions 6 and 7(C)].” The Charging Party’s discharge did not violate the Act
because he was discharged for this misconduct, which did not involve protected activity.

The NLRB’s General Counsel’s Advice Memorandum in Lee Enterprises injects a bit of fresh air into the social media controversy. Here, the Advice Memorandum correctly puts the employer’s discipline of the employee in a proper context. Clearly, there was no effort on the employee’s part to grieve about working conditions and there was no effort on his part to involve other employees in such a grievance. In addition, the employer in this case certainly had the right to protect its reputation from its employee’s inappropriate tweets. As a result, the Lee Enterprises Advice Memorandum should be viewed as positive news and hopefully is a sign that cooler heads will prevail in this controversy.
 

By way of background, the NLRB is a federal agency that administers the National Labor Relations Act (NLRA), which governs the relations between private employers and unions. It is made up of five members. Yet, the NLRA allows for the five-member Board to delegate power to issue rulings and opinions to a three-member panel. On December 28, 2007, the Board, which had only four members at the time, voted to delegate all of its power to a three-member panel. Three days later, the terms of two of the four members that made the vote to delegate expired, leaving only two members. During all of 2008, 2009, and early 2010, the Board had three vacancies while Congress and the President clashed on the nomination of replacement Board members. On March 27, 2010, President Obama made two recess appointments to the NLRB, bringing its numbers back up to four members. By then, the two-member panel had issued nearly 600 decisions, acting as a quorum of the three-member panel. The Supreme Court held that the two-member NLRB, lacked the authority to issue those decisions. 

The Impact of this Decision

This decision has a widespread impact on labor relations law. Every decision issued by the NLRB from January 1, 2008 to March 26, 2010—nearly 600 decisions—was issued by an NLRB without the authority to do so. It is likely that the decisions that were challenged in the federal court system will be vacated since the Court held that the Board lacked the authority to issue them. This means that all of those decisions will have to be reheard by the NLRB, which now has a sufficient number of members to issue opinions. 

As for those decisions not challenged, it is less clear. There may be an argument that the parties waived the right to challenge them as invalid by not appealing or that the judgments are final and cannot be reopened. Yet, the defect in these decisions goes to the power of the Board to issue the decisions, and thus, it may not be possible to waive.

The precedential effect of these decisions is similarly unclear. The current NLRB could issue an order accepting all of them as valid precedent (provided they have the authority to do that, something that is not clear), or the decisions could simply have no precedential effect at all and be reexamined as the issues arise in new cases. Regardless, the fall-out from this decision is likely to be significant and may be largely unsettled for much of 2010.