Dalton Schools, Inc. d/b/a The Dalton School

National Labor Relations Board - Board Decisions

Jun 1, 2016

364 NLRB No. 18 (N.L.R.B. 2016)

364 NLRB No. 18
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Dalton Schools, Inc., d/b/a The Dalton School and
David Brune. Case 02–CA–138611
June 1, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
On June 1, 2015, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.1 In addition, the General Counsel
filed limited cross-exceptions and a supporting brief, to
which the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to adopt the judge’s rulings, findings,2
and conclusions in part, to reverse them in part, and to
adopt the recommended Order as modified and set forth
in full below.3
1. We agree with the judge that Charging Party David
Brune engaged in protected concerted activity when he
emailed his theater department colleagues on February 6,
2014. We further agree that the content of his email was
not so opprobrious as to cause Brune to lose the protec-
tion of the Act. Because the Respondent’s decision to

1 The Respondent has requested oral argument. The request is de-
nied as the record and briefs adequately present the issues and the posi-
tions of the parties.
2 The parties have excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
3 We amend the remedy, Order and notice to conform to the viola-
tion found and to our recent decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016). We have substituted a new notice to con-
form to the Order as modified.
In his cross-exceptions, the General Counsel requests that Brune be
reimbursed for any out-of-pocket expenses incurred while searching for
work as a result of the discrimination against him. Because the relief
sought would involve a change in Board law, we believe that the ap-
propriateness of this proposed remedy should be resolved after a full
briefing by the affected parties, and there has been no such briefing in
this case. Accordingly, we decline to order this relief at this time.
Also, we correct a typographical error in the last paragraph of foot-
note 5 of the judge’s decision. The judge inadvertently stated the perti-
nent date as “February 6, 2004” rather than “February 6, 2014.”
rescind Brune’s employment contract was based on that
protected concerted activity, we adopt the judge’s finding
that the Respondent’s action violated Section 8(a)(1) of
the Act. 4
The department chair had proposed sending a joint let-
ter of protest to the administration and circulated a first
draft; another colleague then proposed alternate lan-
guage. Brune’s subsequent contribution to the discussion
was impassioned and, one might even say, theatrical.
But it was well within the ambit of speech protected by
the Act. See, e.g., St. Margaret Mercy Healthcare Cen-
ters, 350 NLRB 203, 204–205 (2007), enfd. 519 F.3d
373 (7th Cir. 2008).
The Respondent asserts that we are judging Brune’s
behavior under standards more appropriate to the factory
floor, and that Brune’s conduct lost the Act’s protection
because it failed to meet the standards of conduct of the
“academic world.” To the contrary, we acknowledge the
importance of context. In fact, it strikes us that Brune’s
email was written in a tone entirely appropriate for the
setting. It is hard to imagine Brune’s speculation—that
management’s indifference to employee complaints
would result in employees “merely spinning our wheels,
. . . in the mud . . . alone and cold on this unbright cin-
der” (ellipses original)—in a setting other than an aca-
demic one. We reject the notion that professional col-
leagues, discussing collective action among themselves,
can be disciplined or discharged merely for criticizing
management in sharp and unequivocal terms. See id. at
204–205 (nurse did not lose the Act’s protection by
speaking critically with other nurses about newly imple-
mented managerial policies and, in a statement overheard
by a supervisor, telling a colleague that management had
“not [been] truthful” with employees and that their new
evaluation process “was just part of a management
ploy”).5

4 Member Miscimarra joins his colleagues in finding that Brune en-
gaged in protected concerted activity and that Brune did not lose the
protection of the Act. Although the judge stated that Department
Chairman Robert Sloan’s exercise of supervisory authority was “too
isolated to qualify him as a Section 2(11) supervisor,” Member
Miscimarra would find that frequency of exercise of supervisory au-
thority is not determinative of supervisory status because Section 2(11)
requires only possession of authority to carry out a supervisory func-
tion, not its actual exercise. See, e.g., Sheraton Universal Hotel, 350
NLRB 1114, 1118 (2007). Assuming that Sloan was a statutory super-
visor, Member Miscimarra would find under Atlantic Steel Co., 245
NLRB 814, 816 (1979), that Brune’s email, received by Sloan, did not
forfeit the Act’s protection. Alternatively, if Sloan is not a statutory
supervisor, Member Miscimarra agrees with the judge that Brune re-
tained the Act’s protection under what the judge described as the “more
amorphous totality of the circumstances test.”
5 We note that according to some witnesses’ testimony about a
meeting conducted by Respondent on March 11, 2014, Brune falsely
denied having previously made negative statements about the admin-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The Respondent’s heavy reliance on Carleton College
v. NLRB, 230 F.3d 1075 (8th Cir. 2000), is misplaced.
Although the Board assessed the facts of that case differ-
ently than did the court of appeals, the court’s decision is
also readily distinguishable. There, the court found a
lack of protection for an adjunct faculty member who, in
a private meeting with the dean of the college, used pro-
fanity, called his department a “laughingstock,” and re-
fused to commit to “act in a professional manner” or
even to express loyalty to the college. See id. at 1080–
1081. Here, Brune, who after all was not addressing the
Respondent’s administration in his emails, but rather his
faculty colleagues,6 in no way demonstrated the same
lack of respect.
2. We find merit, however, in the Respondent’s ex-
ception to the judge’s finding that the Respondent unlaw-
fully interrogated Brune on March 11, 2014.7 This alle-
gation, which was not contained in either the charge or
the Complaint, was not fully litigated at the hearing, as
required by Pergament United Sales, 296 NLRB 333,
334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). The Re-
spondent was not put on notice that the facts pertaining
to the March 11 meeting would be used to prove a sepa-
rate interrogation violation, and therefore the Respondent
did not have the opportunity to mount a defense. Under
these circumstances, we find that the interrogation alle-
gation was not fully and fairly litigated. See Dilling Me-
chanical Contractors, Inc., 348 NLRB 98, 105 (2006).

istration. (In fact, Brune’s protected February 6 email referred to the
school’s administrators as having “lied” and having not been “honest,
forthright, upstanding, moral, considerate, [or] . . . intelligent or wise.”)
This testimony was contradicted by Brune (who testified he was not
questioned along these lines at the March 11 meeting), and the judge
found it unnecessary to resolve this contradiction. We agree with the
judge’s finding that, even if Brune falsely denied making such state-
ments, the false denials would not affect the outcome of this case be-
cause the Respondent did not rely on them as a basis for withdrawing
Brune’s contract. Additionally, to the extent that Brune falsely denied
having previously made such negative statements, such false denials
did not forfeit Brune the Act’s protection because, in the circumstances
presented here, they would have reflected a “legitimate interest in
shielding [his] Sec. 7 activity from employer inquiry,” Fresenius USA
Mfg., Inc., 362 NLRB No. 130, slip op. at 1 fn. 3 (2015), and the ques-
tions posed to Brune did not otherwise concern his job performance or
relate to other legitimate business considerations, id., slip op. at 1–2.
6 Indeed, the discovery that management had seen his comments
doubtless “came as a complete, and unwelcome surprise” to Brune.
Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip op. at 4 fn. 16
(2014), enfd. sub nom. Three D, LLC v. NLRB, 629 Fed. Appx. 33 (2d
Cir. 2015).
7 Member Miscimarra also disavows the judge’s unnecessary sug-
gestion that Respondent’s handbook violates the Act. The complaint
does not allege that the handbook violates the Act.
ORDER
The Respondent, Dalton Schools, Inc., d/b/a The Dal-
ton School, New York, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully rescinding the employment contracts of
or otherwise discriminating against employees because
of their participation in protected, concerted activities
under Section 7 of the Act; and
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
employee David Brune full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
(b) Make employee David Brune whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him.
(c) Compensate employee David Brune for the adverse
tax consequences, if any, of receiving a lump-sum
backpay award, and file with the Regional Director for
Region 2, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year.
(d) Within 14 days from the date of this Order, remove
from its files any references to the unlawful contract re-
scission, and within 3 days thereafter, notify employee
Brune in writing that that has been done and that the con-
tract rescission will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in New York, New York, copies of the at-
tached notice marked “Appendix.”8 Copies of the notice,
on forms provided by the Regional Director for Region

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DALTON SCHOOLS, INC. 3
2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or internet site, and/or other
electronic means, if the Respondent customarily com-
municates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since April 17, 2014.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Regional
Director attesting to the steps the Respondent has taken
to comply.
Dated, Washington, D.C. June 1, 2016
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT rescind your employment contract be-
cause you engage in activities on behalf of, or in support
of, your fellow employees regarding wages, hours, or
other terms and condition of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above, which are guaranteed you by Section 7 of
the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer David Brune full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges he previously enjoyed.
WE WILL make David Brune whole for the wages and
other benefits he lost as a result of our unlawful rescis-
sion of his employment contract, less any net interim
earnings, plus interest.
WE WILL compensate David Brune for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 2, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the April
17, 2014 rescission of the employment contract of David
Brune, and WE WILL, within 3 days thereafter, notify Da-
vid Brune in writing that this has been done and that the
contract rescission will not be used against him in any
way.
DALTON SCHOOLS, INC., D/B/A THE DALTON
SCHOOL
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-136811 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Rebecca A. Leaf, Esq., for the General Counsel.
Michael J. Volpe and Raquel O. Alvarenga, Esqs. (Venable,
LLP), of New York, New York, for the Respondent.
Margaret McIntyre, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in New York, New York on April 20–21, 2015. David
Brune, an individual, filed the charge on October 10, 2014.
The General Counsel issued the complaint on January 30, 2015.
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by terminating the Charging Party, Da-
vid Brune on April 17, 2014. On that date Respondent rescind-
ed its offer of employment to Brune for the September 2014–
August 2015 school year.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, the Dalton School, is an independent private
school, grades Kindergarten through 12th grade, located in
New York City. It annually derives more than $1 million in
gross revenues. Respondent also purchases and receives goods
and materials valued in excess of $5,000 at its New York loca-
tion directly from places outside of New York State. Respond-
ent admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent hired David Brune in September 2001. He
worked in the school theater department as a teacher, technical
director and production manager. In 2013–14, that department
had at least four and maybe five employees, depending upon
whether Department Chairman Robert Sloan is a statutory em-
ployee or a statutory supervisor. Beside Brune and Sloan the
employees in the theater department were Allen Kennedy, Kev-
in Gallagher and Meg Zeder.
In about 2010, Sloan replaced Kennedy as department
chairman. Around this time, there was sufficient dissension
within the theater department that Respondent hired a consult-
ant to help the members of the theater department communicate
better with each other.
David Brune taught 3 middle school classes in theatrical
production and 3 high school classes in stage craft and produc-
tion. He was also a faculty advisor to student clubs and tech-
nical director of the school’s theater.
Dalton School has a number of annual theater productions.
There are high school productions and several middle school
productions. Each year the middle school puts on a major mu-
sical in late January. Brune is in charge of the lighting, sound,
and the building, painting and rigging of the scenery.
Thoroughly Modern Millie
Sometime in 2013, Kevin Gallagher recommended that the
middle school play for January 2014 be Thoroughly Modern
Millie.1 Gallagher’s recommendation was approved by the
theater department and approved by the Middle School princi-
pal, Lorri Hamilton-Durbin.
Preparations for the production of Thoroughly Modern Millie
began months prior to January 2014. Sometime in about early
January 2014, after rehearsals began, some parents and possibly
some faculty members complained about the ethnic stereotypes
of certain Asian characters in the play.
On about January 10, 2014 production of the play, which
was scheduled to open on about January 29, was halted. James
Best, the associate head of the Dalton School, emailed Brune to
tell him not to go to New Jersey to pick up the props for the
play.
For a period of time, the school considered doing a musical
revue, rather than a musical play. This was not an ideal solu-
tion in that it left all the students who did not have singing parts
with less to do in the production. This apparently also affected
the students on the stage crew. In the week before the sched-
uled opening, students rewrote parts of the play to excise the
stereotypes which some found offensive.2 Brune learned that a
musical would be performed 3 days before the play was sched-
uled to open. A lot of work had to be done in a very short time
in order for the musical play to be performed as scheduled.
Nevertheless, the play was performed successfully.
Respondent renews David Brune’s contract for the
2014–2015 school year
Dalton faculty members are employed on a year to year con-
tractual basis. The school renewed David Brune’s contract
every year from 2001 to 2013. On February 3, 2014, Respond-
ent offered to renew Brune’s employment contract for another
year, September 1, 2014 to August 31, 2015. He signed and
accepted the offer almost immediately.
Dissention in the Theater Department concerning Thoroughly
Modern Millie
Several theater department staff members were unhappy with
how the changes in the play were handled. On February 6,
2014, Department Chairman Robert Sloan drafted a letter that
he proposed to send to Dalton management; Ellen Stein, the
head of the school, Jim Best, the associate head of the school

1 I take judicial notice of the fact that Thoroughly Modern Millie
was a major movie starring Julie Andrews and Mary Tyler Moore in the
1960s. Much later it was rewritten as a musical by Richard Scanlan.
Scanlan’s version was performed on Broadway sometime after 2000
and is currently performed by various school groups.
2 All changes to the play had to be approved by the playwright.
DALTON SCHOOLS, INC. 5
and Lorri Hamilton-Durbin, the director of the middle school.
Sloan’s draft stated that “we” wanted to make management
aware of the tremendous amount of extra time, energy and art-
istry involved in production the various “incarnations” of the
play. The draft described as “excruciating” dealing with the
changes in the production. The draft concluded:
That said, we did feel somewhat taken for granted in that
there seemed to be an expectation that whatever new shape
the production took, the department would find a way to make
it work. We did, but perhaps some recognition of that extra
effort might be in order.
About an hour and a half later, Allen Kennedy responded to
Sloan and other members of the theater department. Kennedy
suggested some slightly stronger language:
… By the resounding silence in reaction to MILLIE on this
matter, we assume that the school’s leaders must be unaware
of the excruciating personal costs of this recent debacle on the
theatre faculty and production team. Accordingly we’re com-
pelled to state clearly the human price paid for our recent ad-
venture in hopes that some thanks and acknowledgement, and
perhaps even an apology, be forthcoming for the totally un-
necessary expenditure of time, resources, and psychic energy
that resulted in what was finally an excellent outcome with
the children.
The Charging Party, David Brune, sent 3 emails to other
members of the theater department.3 Since it is the second, sent
on February 6, 2014 at 4:38 p.m. that led to his discharge, I will
ignore the first. The second email, sent to other department
members, reads as follows:4
From David Brune February 6, 2014 4:38:18 PM
Subject Re(2): first draft of letter
To: Allen Kennedy Department
People,
I don't think we need grovel at the feet of the admin-
istration and beg for scraps, for thanks or appreciation. I
don't think they need to recognize our work and the work
of our students. They haven't in the past. They obviously
have no idea of what we do and it's not our job to educate
them. We are not petitioning for their sympathy or their
understanding. We are seeking redress of grievances. We
have been grievously wronged and we would like an apol-
ogy, a direct sincere apology from all of them to all of us,
and not a quick, "oh, Gosh, sorry about all that, in passing
in the hall. An apology would indicate that they know
what they did and are courageous enough to take responsi-
bility for their actions. Ellen as much as said that they lied

3 Brune’s emails were sent only to fellow members of theater de-
partment. They were not sent to, and was not accessible by, Dalton’s
administration (Ellen Stein, Jim Best and Lorri Hamilton-Durbin),
parents, students or the general public.
4 The third email, G.C. Exh. 9, which proposes a course of action in
addition to requesting an apology. was sent to other members of the
theater department on February 9. There is no evidence that Respond-
ent’s management was aware of this email (unless one deems Robert
Sloan to be a statutory supervisor).
to us and lied to the students. OK. You lied. Apologize for
lying. Apologize for not allowing us to answer directly,
face to face, the questions a member of the community
had about certain aspects of the script. Apologize for not
being able to trust us to be adults, to be teachers and to be
committed professionals. Apologize for issuing directives
to middle school advisors on exactly what to say and what
not to say to their students about the situation. Apologize
for not being honest, forthright, upstanding, moral, consid-
erate, much less intelligent or wise. Apologize for creating
a situation and turning around and blaming us for being
responsible for such a painful hubbub in the community.
Apologize for demonizing us, for making us the bad guys,
for forcing us to toe the line or else. Apologize for the
threats to our job if we didn't straighten up and fly right.
Be honest with us, for once. And then leave us alone to do
our job, which we have been doing very well, thank you,
for years without your intervention. And if anyone in the
parent body has concerns about our work, have then come
to us and address us directly. I think we can deal with that.
I think it is the best thing to do. I think it is the only hon-
est, adult thing to do.
So, no, neither letter is any good. What we need is a
strong letter from all of us demanding an apolo-
gy.....period...forget how hard poor little we worked. Who
cares? If they refuse to address our greviences and hunker
in the bunker on the 8th floor, then there is nothing we can
do. Nothing.. .They will make sure that everything vanish-
es down the Memory Hole and that will be that..... status
quo—things will remain as they are .... hypocracy will
have triumphed.., and we will be merely spinning our
wheels,..in the mud .... alone and cold on this unbright
cinder .... and it will just be too damn bad.
I'm sure 1 have left some things out....
David
Kevin Gallagher responded to Brune, with a copy to Allen
Kennedy and others in the theater department on February 7.
The essence of Gallagher’s email was that any protest to the
school management or soliciting praise for a job well done
would fall on deaf ears. Gallagher advocating putting the
Thoroughly Modern Millie issues behind them and concentrat-
ing on other issues.
David Brune sent department staff another email on Febru-
ary 9, suggesting an alternative to confronting the administra-
tion. This was essentially a plan to avoid a repeat of the Thor-
oughly Modern Millie controversy in the future.
Between February 6 and February 11, Robert Sloan told El-
len Stein about David Brune’s email of February 6 suggesting
that theater staff request an apology from Dalton management
(G.C. 3 and 7). She requested that Sloan provide her with a
copy of that email. He did so.
Meeting on March 11, 2014
On March 11, 2014, Ellen Stein summoned David Brune to a
meeting with herself, James Best and Lorri Hamilton-Durbin.
Possibly the only disputed facts in this case concern what was
said in this meeting. All four agree that the meeting concerned
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Thoroughly Modern Millie and that nobody mentioned Brune’s
February 6 email.
Brune’s testimony about the meeting is as follows:
The March 11 meeting was essentially a debriefing meeting
about the situation. We discussed—I discussed the
situation. I thought it was—they asked for my opinion. I
told them it was unfortunate, handled in an unfortunate way
that I believed that clear and honest and open discussion
among all the participants in a creative situation like theater is
the best policy and that we should have been allowed to talk
to the concerned parents and address their concerns directly.
I—the administration said that was privileged communication
and so we—we’re not allowed to address them directly.
We discussed the amount of extra work that the situation
with Thoroughly Modern Millie caused us in the department,
a tremendous amount of extra work to deal with the various
changes in production strategy. Tr. 68.
Ellen Stein testified that she asked Brune if he had said any-
thing negative about the administration such as lying, being
immoral, unintelligent et. cetera. She did not testify as to
Brune’s answer. However, James Best testified that he and
Stein asked Brune, “whether he had communicated about the
administration being dishonest and immoral,” Tr. 151. Best
testified that Brune answered that he had said nothing of the
sort.
Middle School Director Lorri Hamilton-Durbin testified that
on March 11, Stein asked Brune if he had said or done anything
that was expressing his discontent with the administration. She
testified that Brune answered, No. Tr. 167–68. She said that
Best asked Brune if he had labeled the administration dishonest
or immoral and that he denied this. Hamilton-Durbin testified
that at the end of the meeting, Stein asked, “if David had said
things about her or called us dishonest, and he said no.”
There are no contemporaneous notes of what transpired at
the March 11 meeting. On May 27, 2014, Stein wrote a memo,
on advice of counsel, in which she recalled asking Brune twice
if he had said anything negative about the administration – that
the administration had lied, that it was immoral, etc., and that
Brune denied doing so. She also wrote that Best asked the
same question and received the same denial.
The April 17, 2014 meeting
On April 17, 2014, Stein and Best called David Brune to an-
other meeting. Stein handed Brune a copy of his February 6
email (the email beginning “people”) and asked him if he wrote
it. Brune admitted that he did so. Stein and Best gave Brune a
choice of continuing to teach through the end of the school year
or leaving immediately. The next week Brune told Stein and
Best that he would like to stay at Dalton until the end of the
term.
There is absolutely no evidence in this record that Stein
and/or Best told Brune on April 17, that his contract was being
rescinded in part because he lied to them on March 11. I credit
Brune’s testimony that first time he was told this was on May 9,
Tr. 118. I also rely in part of the fact that Brune sent an email
to Stein, Best, Durbin on May 22, 2014 stating that Stein first
told him he lied on May 9, R. Exh- 5. I therefore conclude that
Respondent rescinded his contract solely for the contents of the
February 6 email and that its reliance on his alleged lying on
March 11 is a post-hoc rationalization.5
Analysis
Respondent violated Section 8(a)(1) in rescinding David
Brune’s employment contract
Section 8(a)(1) provides that it is an unfair labor practice to
interfere with, restrain or coerce employees in the exercise of
the rights guaranteed in Section 7. Discharging, or as in this
case, allegedly rescinding an employee’s contract because they
engaged activity protected by Section 7 is a violation of Section
8(a)(1).
Section 7 provides that, "employees shall have the right to
self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection ...
(Emphasis added)"
In Myers Industries (Myers 1), 268 NLRB 493 (1984), and in
Myers Industries (Myers 11) 281 NLRB 882 (1986), the Board
held that "concerted activities" protected by Section 7 are those
"engaged in with or on the authority of other employees, and
not solely by and on behalf of the employee himself." However,
the activities of a single employee in enlisting the support of
fellow employees in mutual aid and protection is as much con-
certed activity as is ordinary group activity.
The discussion amongst employees in the theater department
as to how to address their concerns regarding the manner in
which Thoroughly Modern Millie was handled was clearly
protected concerted activity. Moreover, contrary to Respond-

5 I find the testimony of Brune, Stein, Best and Hamilton-Durbin
equally credible about what was said on March 11. However, I find that
what was said does not matter to the outcome of this case, because
Respondent did not rely on Brune’s alleged lying in rescinding his
contract.
I would reach no different result in this case even if I were to credit
Respondent’s witnesses and discredit Brune as to what was said on
March 11, and find that his “lie” was one of the reasons his contract
was rescinded on April 17.
Brune’s discharge would not be rendered lawful even if he lied to
Respondent on March 11 and if Respondent discharged him in part for
this lie. The “lie” was elicited by Respondent during an investigation
that was motivated by Respondent’s animus towards Brune’s protected
email. Thus, reliance on such a “lie” is not a legitimate defense to his
discharge, Kiddie, Inc., 294 NLRB 840 n. 3 (1989) and cases cited
therein. Moreover, Respondent’s interrogation of Brune regarding his
protected activity on March 11, although not alleged in the complaint,
violated the Act. Given that the interrogation was unlawful, Brune was
under no obligation to respond truthfully. His “dishonesty” does not
constitute a lawful reason for his discharge, United Services Automobile
Assn., 340 NLRB 784, 785–86 (2003) enfd. 387 F. 3d 908 (D.C. Cir.
2004).
I totally discredit any testimony from Respondent’s witnesses sug-
gesting that any conduct by Brune prior to February 6, 2004 had any-
thing to do with the rescission of his employment contract. Respondent
renewed Brune’s contract despite any issues it had with him prior to
February 6. Moreover, Stein did not mention pre-2014 conduct to
Brune on April 17, when she informed him that his contract was being
rescinded, Tr. 152–53.
DALTON SCHOOLS, INC. 7
ent’s brief at page 14, Brune’s email was clearly intended to
induce group action. He stated, “What we need is a strong
letter from all of us demanding an apology.” The fact that no
group address was ever made to management does not lead to
any different result.6
Additionally, the Board held in Amelio's, 301 NLRB 182
(1991) that in order to present a prima facie case that an em-
ployer has discharged an employee in violation of Section
8(a)(1), the General Counsel must establish that the employer
knew of the concerted nature of the activity. When Ellen Stein
saw that David Brune’s emails were sent to the theater depart-
ment and from the context of his email she knew that he was
responding to communications from other employees regarding
how to address the issues surrounding the production of Thor-
oughly Modern Millie.7
Respondent’s contention in its brief that Ms. Stein did not
know of the concerted nature of the Brune’s February 6 email
has absolutely no support in this record. At Tr. 24–25, Stein
testified in response to the General Counsel as follows:
Q. And you knew that David had sent this email to members
of the theater department; isn’t that right?
A. Correct.
Q. And the theater department includes Mr. Brune’s col-
leagues, correct?
A. And supervisor, Correct?
Q. Okay, So that is Bob Sloan, Kevin Gallagher, Meg Zeder
and Allen Kennedy; is that right?
A. Correct.
Q. Those are the members of the theater department. You
said his supervisor; who do you mean?
A. Bob Sloan.
Q. And these people who I just listed, those are the only indi-
viduals on the theater department email list serve; is that
right?
A. I believe so.
This exchange establishes that Stein knew that Brune had
sent the email to other employees. At no point during the hear-
ing did she contend that she thought the email had been sent
only to Sloan.8

6 Similarly, there is no merit to Respondent’s contention at page 14
of its brief that Brune’s email did not relate to terms and conditions of
employment. Sloan’s draft stating that “we” want to make manage-
ment aware of the extra time, energy and artistry involved in producing
Thoroughly Modern Millie under the conditions prevailing in January
2014 and the responses from Kennedy and Brune, clearly demonstrate
that several theater employees were concerned about a term and condi-
tion of employment.
7 The beginning of the second paragraph of Brune’s email, “So, no,
neither letter is any good,” makes it clear that Brune was responding to
communications from others in the department.
8 Thus, I need not decide whether Respondent has established that
Sloan was a statutory supervisor rather than an employee. However,
there is no evidence as to how frequently Sloan effectively recom-
mended employees for hire, or the last time that he did so. Pursuant to
the Board decision in Greenspan, D.D.S., P.C., 318 NLRB 70 (1995)
enfd. mem.101 F. 2d. 107 (2d Cir. 1996) and Shaw, Inc., 350 NLRB
354, 357 and n. 21 (2007), I conclude that Sloan’s exercise of authority
is too isolated to qualify him as a section 2(11) supervisor.
Moreover, when meeting with Stein and Best on March 11,
Brune made it clear that he was speaking for other employees
in the theater department as well as himself regarding the extra
work caused by the last minute changes to the production of
Thoroughly Modern Millie.
The only issue in this case is whether the statements made in
this email are of such a nature that they forfeit the protection of
the Act. The criteria for evaluating whether an employee’s
conduct while engaging in protected activity forfeits the protec-
tion of the Act depends in part on when and where the allegedly
protected conduct occurred. In the case of direct communica-
tions between an employee and manager or supervisor the crite-
ria is set forth in Atlantic Steel Co., 245 NLRB 814 (1979). In
making this determination the Board balances four factors: 1)
the place of discussion; 2) the subject matter of the discussion;
3) the nature of the employee’s outburst and 4) whether the
outburst was provoked by an employer’s unfair labor practice;
Also see Overnite Transportation Co., 343 NLRB 1431, 1437
(2004) .
Different criteria are used in cases addressing off-duty, off-
site communications with other employees or third parties us-
ing social media, Triple Play Sports Bar & Grille, 361 NLRB
No. 31 (2014); Pier Sixty, LLC, 362 NLRB No. 59 (March 31,
2015).
Consideration of factors 1 and 2 in the Atlantic Steel test fa-
vor a finding that Brune did not lose the protection of the Act.
His protected activity was not a face-to-face outburst to man-
agement.9 Moreover, his email was accessible only to fellow
employees, not students, parents or the general public. In fact,
the email was not intended to be seen by management and was
not directly accessible to management. There is no evidence
that Brune’s email adversely affected the ability of theater de-
partment employees to do their jobs [apart from whatever bad
feeling lingered as a result of the Thoroughly Modern Millie
experience generally]. As a result, I find that the Atlantic Steel
test not to be strictly applicable to this case. Rather the test I
apply is the more amorphous totality of the circumstances test,
as was applied in Triple Play Sports Bar and Pier Sixty.10,11 In

On the other hand, if Sloan was a supervisor, his knowledge of the
concerted nature of Brune’s email is imputed to Respondent.
Lorri Hamilton-Durbin, who attended the March 11 meeting with
Stein, Best and Brune, was aware from a January 29, 2014 meeting,
that a number of faculty members had complaints about the way man-
agement had handled the controversy surrounding Thoroughly Modern
Millie. She had also seen Brune’s February 6 email. Thus, Hamilton-
Durbin knew that the contents of that email amounted to more than an
individual complaint from David Brune.
9 In Groves Truck & Trailer, 281 NLRB 1194, 1195 (1986), the
Board in finding the employer violated Section 8(a)(1), considered the
fact that the employee’s statement that the CEO was “ a cheap s.o.b.”
was addressed to other employees; not to its target.
10 If I were to apply Atlantic Steel, factor 3 tends to support finding
that Brune’s email was protected. The subject matter of Brune’s email
was a concern of several employees in the theater department. Factor 4
is irrelevant. Respondent did commit any unfair labor practices related
to the subject of the email.
11 I note, however, that in Battle’s Transportation, Inc., 362 NLRB
No. 17 (February 24, 2015), n. 4, the Board considered a provocation
that was not an unfair labor practice. The Board considered the fact
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
any event, I would reach the same result applying either test.12
A case directly on point is Union Carbide Corp., 331 NLRB
356, 359–60 (2000) in which the Board held that an employee
engaged in protected activity did not lose the protection of the
Act by calling his supervisor a “f-g liar.” Another similar case
in Ben Pekin Corp., 181 NLRB 1025 (1970) in which the
Board held that an employee engaged in protected activity did
not lose statutory protection by accusing the employer’s presi-
dent of bribing a union agent to accept a lower wage increase.13
On the other hand, in the Atlantic Steel case itself, the Board
deferred to an arbitrator’s ruling sustaining the discharge of an
employee who called his supervisor a “lying s.o.b.” The Atlan-
tic Steel decision is at odds with later Board decisions in which
similar conduct has been deemed insufficient to forfeit the pro-
tections of the Act. In St. Margaret Mercy Health Care Cen-
ters, 350 NLRB 203, 204–05 (2007), the Board citing Dreis &
Krump Mfg. v. NLRB, 544 F. 2d 320 (7th Cir. 1976) stated the
test as follows:
Otherwise protected activity remain[s] protected unless found
to be ‘so violent or of such serious character as to render the
employee unfit for further service.
In St. Margaret Mercy, the Board found that an employee
did not forfeit the protection of the Act by telling other employ-
ees that management was not being truthful with regard to an
employee evaluation process.
With regard to otherwise protected statements made to third
parties, the Board has found that an employee forfeits the pro-
tection of the Act only if the statements are made with
knowledge of their falsity or with reckless disregard for their
truth or falsity, Jimmy Johns, 361 NLRB No. 27 (2014);
MasTec Advanced Technologies, 357 NLRB No. 17 (2011). If
one were to apply this test, Brune clearly did not forfeit the
protection of the Act. Moreover, an employee should not be
held to stricter scrutiny when communicating with co-workers,
as opposed to potential customers of their employer.

that the employer told union steward Kearney to “shut up” during a
grievance meeting a factor in determining that he did not forfeit the
protection of the Act. In response to this remark, Kearney told the
employer’s chief operating officer to shut up, slammed his fist on the
table and called her a liar and stupid in a raised voice. Also see Felix
Industries, 331 NLRB 144, 145 (2000). In the instant case, Brune’s
email was clearly a response to Respondent’s handling of the Thor-
oughly Modern Millie controversy and Robert Sloan’s email. If Sloan
is a supervisor, one could argue that his email was the provocation that
should be taken into account in the Atlantic Steel analysis. The record
is silent as to merits of employee dissatisfaction with Respondent’s
handling of Thoroughly Modern Millie.
12 There is no reason or Board precedent on which to conclude that
the section 7 rights of teachers, who are protected by the Act, is any
less than those of other employees. As the General Counsel points out
a similar argument can be made with respect to other categories of
employees, such as those working in the health care industry. Where
Congress has sought to curtain the section 7 rights of a class of em-
ployees, it has done so explicitly as in section 8(g) [10 days notice
required before a labor organization may strike or picket at a health
care institution].
13 Other similar cases are Harris, Inc., 269 NLRB 733, 738 (1984);
United States Postal Service, 241 NLRB 389 (1979).
In sum, I find that the totality of Board precedent leads me to
conclude that Brune did not forfeit the protection of the Act.
He did not make any malicious and/or untrue statements of fact.
Brune did not use any obscenities. He did not threaten Re-
spondent’s management; he merely demanded an apology.
Brune’s email in questioning the honesty, integrity and intelli-
gence of Respondent’s management did not forfeit the protec-
tion of the Act. Respondent, therefore, violated Section 8(a)(1)
in rescinding his employment contract.
To the extent that Respondent relies on its employee hand-
book, the handbook itself violates the Act in interfering with
protected conduct. The Board has held that an employer vio-
lates Section 8(a)(1) when it maintains a work rule that reason-
ably tends to chill employees in the exercise of their Section 7
rights, Lafayette Park Hotel, 326 NLRB 824, 825 (1998). A
rule is unlawful if it explicitly restricts activities protected by
Section 7. If this is not true a violation is established by a
showing that 1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; 2) that the rule was prom-
ulgated in response to protected activity or 3) that the rule has
been applied to restrict the exercise of Section 7 rights, Luther-
an Heritage Village-Livonia, 343 NLRB 646, 647 (2004). If
Respondent contends that Brune’s email violated the conditions
set forth in its employee handbook, the relevant portions of the
handbook violate Section 8(a)(1).
Respondent violated Section 8(a)(1) in interrogating David
Brune about his protected concerted activity on
March 11, 2014.
Respondent’s interrogation of Brune regarding his protected
activity on March 11, although not alleged in the complaint,
violated the Act, United Services Automobile Assn., 340 NLRB
784, 785–86 (2003) enfd. 387 F. 3d 908 (D.C. Cir. 2004).
When Respondent called Brune into the meeting, management
had seen the February 6 email and was aware of its concerted
nature. Indeed, the meeting was a trap. Respondent asked
Brune about the email without letting on that it was aware of it.
Thus, it would have expected Brune to answer its questions in
the manner that he did, regardless of whether he answered as he
testified or as management testified.
The Board may find and remedy a violation even in the ab-
sence 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, Pergament United Sales, 296
NLRB 333, 334 (1989), enfd. 920 F. 2d 130 (2d Cir. 1990).
Here a close connection exists between the complaint allegation
regarding the discharge and Respondent’s interrogation regard-
ing the protected concerted activity for which Brune was dis-
charged. Moreover, Respondent herein relies on the March 11
interrogation as a defense for Brune’s termination. I thus find
that the legality of the March 11 interrogation was fairly and
fully litigated and that this interrogation violated Section
8(a)(1).
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(1) of the Act in rescinding
David Brune’s employment contract for 2014–1015 on April
17, 2014.
Respondent violated Section 8(a)(1) in interrogating David
DALTON SCHOOLS, INC. 9
Brune about his protected concerted activity on March 11,
2014.
REMEDY
The Respondent, having discriminatorily discharged an em-
ployee, must offer him reinstatement and make him whole for
any loss of earnings and other benefits. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No.8 (2010).
Respondent shall reimburse the discriminatee in amounts
equal to the difference in taxes owed upon receipt of a lump-
sum backpay award and taxes that would have been owed had
there been no discrimination. Respondent shall also take what-
ever steps are necessary to insure that the Social Security Ad-
ministration credits the discriminatee’s backpay to the proper
quarters on his Social Security earnings record.14
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
Respondent, The Dalton School, New York, New York of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their protected concerted
activities.
(b) Discharging or otherwise discriminating against any of
its employees for engaging in and/or planning to engage in
protected concerted activities, including but not limited to writ-
ing to management complaining about their treatment.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board's Order, offer
David Brune full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make David Brune whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section of the deci-
sion.
(c) Compensate David Brune for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and
file a report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters.

14 The General Counsel also seeks reimbursement for all Brune’s
expenses while seeking interim employment. At present, there is no
Board precedent for such a remedy. It is up to the Board, not this judge
to decide whether to change existing Board law.
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(d) Within 14 days from the date of the Board's Order, re-
move from its files any reference to the unlawful dis-
charge/rescission and within 3 days thereafter notify David
Brune in writing that this has been done and that the dis-
charge/rescission will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional
Director may allow for good cause shown, provide at a rea-
sonable place designated by the Board or its agents, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records, including an electron-
ic copy of such records if stored in electronic form, necessary
to analyze the amount of backpay due under the terms of this
Order.
(f) Within 14 days after service by the Region, post at its
New York, New York facility copies of the attached notice
marked "Appendix".16 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since April 17, 2014.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., June 1, 2015.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interrogate you about your protected concerted
activities, including your efforts to induce protests to manage-
ment or to seek apologies from management.
WE WILL NOT discharge, rescind your employment contract
or otherwise discriminate against any of you for engaging in or
planning to engage in protected concerted activity, including
protesting or complaining about your wages, hours and/or other
terms and conditions of your employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
David Brune full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make David Brune whole for any loss of earnings
and other benefits resulting from his discharge, less any net
interim earnings, plus interest compounded daily.
WE WILL compensate David Brune for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and
WE WILL file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar quar-
ters.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge/contract
rescission of David Brune, and WE WILL, within 3 days there-
after, notify him in writing that this has been done and that the
discharge/contract rescission will not be used against him in
any way.
DALTON SCHOOL, INC. D/B/A DALTON
SCHOOL
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-138611 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.