National Labor Relations Board administrative law judge Arthur J. Amchan ruled that the Dalton School violated the National Labor Relations Act by unlawfully interrogating and terminating a theater teacher working for the prestigious New York school.  Dalton School, Case No. 2-CA-138611 (June 1, 2015).

The Dalton School hired David Brune in 2001. He taught six courses at the K-12 school, and was also technical director of the school’s theater. In 2013, a fellow colleague in the theater department recommended that the middle school stage a production of Thoroughly Modern Millie. Even though the proposal was approved by the school’s principal, some community members complained that the show perpetuated negative racial stereotypes. Production of the play was thus halted while students and theater faculty worked to re-write the offending portions of the play. The re-writes required a tremendous amount of work in a very short time, and all changes had to be approved by the show’s playwright. Nonetheless, the show was a great success.

Not surprisingly, several theater faculty members were not happy with how the changes in the play were handled, particularly because the students and teachers had to put in so much extra work in such a short time. So theater department chair Robert Sloan drafted a letter he intended to send to Dalton Management on behalf of himself and his colleagues in the theater department asking for “recognition” for their “extra efforts.” After reading the draft, another faculty member suggested that the teachers ask for an apology from Dalton Management as well.

Brune also read the draft letters and responded with his own email, which accused Dalton Management of not being:

“honest, forthright, upstanding, moral, considerate, much less intelligent or wise.”

The email further opined that the theater department members should demand an apology from management and was only addressed to fellow theater department members. But as always happens, the email was shared with Dalton Management.

In March, Dalton Management officials called Mr. Brune into a meeting, ostensibly to discuss the Thoroughly Modern Millie debacle. During the meeting, multiple management team members asked Mr. Brune if he had “communicated about the administration being dishonest or immoral.” Mr. Brune, being unaware that his email had been shared with Dalton Management, lied repeatedly and said that he had not.

Mr. Brune was called to another meeting with Dalton Management in late April. During the meeting, he was handed a copy of the email where he referred to management as unintelligent and immoral. Mr. Brune admitted that he wrote the email when asked. He was then terminated, effective the last day of classes.

After reviewing the facts, Judge Amchan ruled that Dalton violated Section 8(a)(1) of the Act by discharging Mr. Brune for engaging in concerted protected activity. Specifically, the judge held that Mr. Brune’s email was “clearly protected concerted activity” because it was “intended to induce group action.” In pertinent part, the email implored the other theater department members to demand an apology from Dalton Management for forcing the theater teachers to work so hard, so the judge determined that the email was sufficiently related to terms and conditions of employment as to render its contents protected by Section 7 of the Act.

Mr. Brune’s email further did not lose the protections of the Act even though it accused management officials of being immoral and unintelligent, among other things. The judge explained that in Union Carbide Corp., 331 NLRB 356 (2000), “a case directly on point,” an employee called his boss a “f-ing liar” and did not lose the Act’s protection. And Judge Amchan also noted that protected statements made to third parties (such as his fellow teachers) would only lose the protection of the Act if the statements were made “with knowledge of their falsity or with reckless disregard for their truth or falsity.” So since Mr. Brune [arguably] did not make any malicious or untrue statements of fact, and did not use obscenities, his email retained the Act’s protection.

Most surprisingly though, Judge Amchan found the Dalton School guilty of unlawfully interrogating Mr. Brune regarding his email, despite the fact the school was never charged with unlawful interrogation. Judge Amchan explained the Board can find a violation in the absence of a specified allegation in the complaint if the “issue is closely connected to the subject matter of the complaint and the violation has been fully litigated.” Since a close connection existed between the interrogation and Mr. Brune’s discharge, this standard had been satisfied. And here, because Dalton Management asked Mr. Brune about his email even though they never told him they were aware of it, the meeting was found to be an unlawful “trap.” Thus, Dalton was found to have violated Section 8(a)(1) by unlawfully interrogating Mr. Brune about his protected activity.

Dalton was ordered to reinstated Mr. Brune with backpay and interest, and to compensate him for any adverse tax consequences resulting from his lump-sum award.

The judge’s decision here demonstrates yet again that the Board and its administrative law judges take a very liberal view of “concerted protected activity” and will rarely find that an employee’s missives will lose the Act’s protection. Here, Mr. Brune called his employer a variety of names, then lied about it, but was still given his job back (and keep in mind that he is not in a union shop). So in sum, employers must tread carefully when responding to inappropriate or offensive employee communications. Disciplining or terminating an employee who has arguably engaged in protected activity could prove costly, even if that employee was being offensive.