Monday, June 6, 2016

A dramatic retelling of an NLRB protected concerted activity decision

Last week, the NLRB decided Dalton Schools, Inc. [pdf], in which the Board unanimously determined that a private school unlawfully terminated one of its teachers for engaging in certain protected concerted activity—complaints about how the school handled its annual musical production.

In the spirit of the decision, I present a dramatic retelling of the case, in five acts.

Act One

In which the the Dalton School’s theater department decides to produce Thoroughly Modern Millie as its annual major musical production, which includes contributions from all of the department’s faculty, including teacher David Brune.

Act Two

In which parents complain about Thoroughly Modern Millie‘s ethnic stereotypes about Asians, and the school first scraps the play, and then decides instead to do last-minute rewrites to eliminate the stereotypes.

Act Three

In which members of the theater department, including Brune, complain amongst themselves and to management about the last-minute decisions regarding Thoroughly Modern Millie, the “excruciating” changes in the production, and the stress such changes caused the faculty.

Act Four

In which the internal grousing culminates in three separate emails sent by Brune to other members of the theater department, one of which contained the following language that led to Brune’s termination:
I don’t think we need grovel at the feet of the administration 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 apology, 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 responsibility for their actions. Ellen as much as said that they lied 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, considerate, 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 honest, adult thing to do.  
So, no, neither letter is any good. What we need is a strong letter from all of us demanding an apology.....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 vanishes 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, the mud .... alone and cold on this unbright cinder .... and it will just be too damn bad.
Act Five

In which the NLRB concludes that the Dalton School fired Brune for engaging in protected concerted activity:
The department chair had proposed sending a joint letter of protest to the administration and circulated a first draft; another colleague then proposed alternate language. 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. 
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 cinder” (ellipses original)—in a setting other than an academic 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.  
End scene.