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

National Labor Relations Board - Administrative Judge Opinions

Jun 1, 2015

02-CA-138611 (N.L.R.B. Jun. 1, 2015)

JD-31-15
New York City, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DALTON SCHOOL, INC., d/b/a
DALTON SCHOOL
and Case No. 2-CA-138611
DAVID BRUNE,
An Individual
Rebecca A. Leaf, Esq.
for the General Counsel.
Michael J. Volpe and Raquel O. Alvarenga, Esqs.,
(Venable, LLP, New York, New York),
for the Respondent.
Margaret McIntyre, Esq.(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 Section 8(a)(1) of the Act by
terminating the Charging Party, David Brune on April 17, 2014. On that date Respondent
rescinded its offer of employment to Brune for the September 2014-August 2015 school year.
On the entire record, including my observation of the demeanor 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 location directly from places outside of New York State. Respondent
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2
admits, and I find, that it is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
5
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 employee or a statutory supervisor. Beside Brune and Sloan the
employees in the theater department were Allen Kennedy, Kevin Gallagher and Meg Zeder.10
In about 2010, Sloan replaced Kennedy as department chairman. Around this time, there
was sufficient dissension within the theater department that Respondent hired a consultant to
help the members of the theater department communicate better with each other.
15
David Brune taught 3 middle school classes in theatrical production and 3 high school
classes in stage craft and production. He was also a faculty advisor to student clubs and
technical director of the school’s theater.
Dalton School has a number of annual theater productions. There are high school 20
productions and several middle school productions. Each year the middle school puts on a major
musical in late January. Brune is in charge of the lighting, sound, and the building, painting and
rigging of the scenery.
Thoroughly Modern Millie25
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 principal, Lorri Hamilton-Durbin.
30
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.
35
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 40
play. This was not an ideal solution 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.

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.
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3
In the week before the scheduled 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 scheduled 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.5
Respondent renews David Brune’s contract for the 2014-2015 school year
Dalton faculty members are employed on a year to year contractual basis. The school
renewed David Brune’s contract every year from 2001 to 2013. On February 3, 2014, 10
Respondent 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
15
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 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 20
extra time, energy and artistry 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 25
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 30
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 compelled to state clearly 35
the human price paid for our recent adventure in hopes that some thanks and
acknowledgement, and perhaps even an apology, be forthcoming for the totally
unnecessary expenditure of time, resources, and psychic energy that resulted in what was
finally an excellent outcome with the children.
40
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

2 All changes to the play had to be approved by the playwright.
3 Brune’s emails were sent only to fellow members of theater department. 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.
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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 letter5
To: Allen Kennedy Department
People,
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 10
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 would15
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 20
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, 25
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 30
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 35
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,..in the mud
.... alone and cold on this unbright cinder .... and it will just be too damn bad.
40

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
Respondent’s management was aware of this email (unless one deems Robert Sloan to be a statutory
supervisor).
JD-31-15
5
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 5
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 concentrating on other
issues.
10
David Brune sent department staff another email on February 9, suggesting an alternative
to confronting the administration. This was essentially a plan to avoid a repeat of the
Thoroughly Modern Millie controversy in the future.
Between February 6 and February 11, Robert Sloan told Ellen Stein about David Brune’s 15
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
20
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 Thoroughly Modern Millie and
that nobody mentioned Brune’s February 6 email.
25
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. I30
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.35
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 various40
changes in production strategy. Tr. 68.
Ellen Stein testified that she asked Brune if he had said anything 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 45
communicated about the administration being dishonest and immoral,” Tr. 151. Best testified
that Brune answered that he had said nothing of the sort.
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6
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 5
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, 10
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
15
On April 17, 2014, Stein and Best called David Brune to another 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.20
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 25
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

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 suggesting that any conduct by Brune
prior to February 6, 2004 had anything 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.
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7
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 5
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, 10
join, or assist labor organizations, to bargain collectively through representatives of their own
choosing, 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 15
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 concerted activity as is ordinary group
activity. 20
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 Respondent’s brief at page 14, Brune’s
email was clearly intended to induce group action. He stated, “What we need is a strong letter 25
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 employer has discharged an employee in violation of Section 8(a)(1), the 30
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 department 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 Thoroughly
Modern Millie.735
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:

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
management 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 condition 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.
JD-31-15
8
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 colleagues, correct?5
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; 10
who do you mean?
A. Bob Sloan.
Q. And these people who I just listed, those are the only individuals on the
theater department email list serve; is that right?
A. I believe so.15
This exchange establishes that Stein knew that Brune had sent the email to other
employees. At no point during the hearing did she contend that she thought the email had been
sent only to Sloan.8
20
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 25
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 protection of the Act
depends in part on when and where the allegedly protected conduct occurred. In the case of
direct communications between an employee and manager or supervisor the criteria is set forth in
Atlantic Steel Co., 245 NLRB 814 (1979). In making this determination the Board balances four 30
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) .

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
recommended 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.
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
management 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.
JD-31-15
9
Different criteria are used in cases addressing off-duty, off-site communications with
other employees or third parties using 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 favor a finding that Brune did 5
not lose the protection of the Act. His protected activity was not a face-to-face outburst to
management.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 department employees to do their jobs [apart from whatever bad 10
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 any event, I would reach the same result applying either test.12
15
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 president of bribing a union agent to 20
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

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
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 Thoroughly 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
employees, 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).
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10
Atlantic Steel decision is at odds with later Board decisions in which similar conduct has been
deemed insufficient to forfeit the protections of the Act. In St. Margaret Mercy Health Care
Centers, 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:
5
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 employees that management was not being truthful with regard to an 10
employee evaluation process.
With regard to otherwise protected statements made to third parties, the Board has found
that an employee forfeits the protection 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 15
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.
20
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 Respondent’s management; he merely
demanded an apology. Brune’s email in questioning the honesty, integrity and intelligence of
Respondent’s management did not forfeit the protection of the Act. Respondent, therefore, 25
violated Section 8(a)(1) in rescinding his employment contract.
To the extent that Respondent relies on its employee handbook, the handbook itself
violates the Act in interfering with protected conduct. The Board has held that an employer
violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in 30
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 language to
prohibit Section 7 activity; 2) that the rule was promulgated in response to protected activity or
3) that the rule has been applied to restrict the exercise of Section 7 rights, Lutheran Heritage 35
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 40
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 45
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
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11
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 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, Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 5
920 F. 2d 130 (2d Cir. 1990). Here a close connection exists between the complaint allegation
regarding the discharge and Respondent’s interrogation regarding the protected concerted
activity for which Brune was discharged. 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).10
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.
15
Respondent violated Section 8(a)(1) in interrogating David Brune about his protected
concerted activity on March 11, 2014.
REMEDY
20
The Respondent, having discriminatorily discharged an employee, must offer him
reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be
computed 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). 25
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 whatever steps are necessary to insure that
the Social Security Administration credits the discriminatee’s backpay to the proper quarters on 30
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
35

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 recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD-31-15
12
ORDER
Respondent, The Dalton School, New York, New York officers, agents, successors, and
assigns, shall
5
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 10
and/or planning to engage in protected concerted activities, including but not limited to writing
to management complaining about their treatment.
(c) In any like or related manner interfering with, restraining, or coercing its employees
in the exercise of their rights under Section 7 of the Act. 15
2. Take the following affirmative action necessary to effectuate 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 20
position, without prejudice to his seniority or any other rights or privileges previously 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
decision.25
(c) Compensate David Brune for the adverse tax consequences, 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.
30
(c) Within 14 days from the date of the Board's Order, remove from its files any reference
to the unlawful discharge/rescission and within 3 days thereafter notify David Brune in writing
that this has been done and that the discharge/rescission will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional35
Director may allow for good cause shown, provide at a reasonable 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 electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
40
(e) 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

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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board."
JD-31-15
13
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
conspicuous 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 5
Respondent customarily communicates 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 Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and 10
former employees employed by the Respondent at any time since April 17, 2014.
(f) 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. 15
Dated, Washington, D.C., June 1, 2015.
20
____________________
Arthur J. Amchan
Administrative Law Judge
JD-31-15
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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT interrogate you about your protected concerted activities, including your efforts
to induce protests to management 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, restrain, 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 previously 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 consequences, 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 quarters.
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
thereafter, 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
(Employer)
Dated ______________ By ______________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Room 3614, New York, NY 10278-0104
(212) 264-0300, Hours: 8:45 a.m. to 5:15 p.m.
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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (212) 264-0346.