As previously reported in EmployNews, recent National Labor Relations Board decisions have disrupted established guidelines with regard to employers’ obligations to tolerate uncivil and insulting behavior and comments from employees. The Board has recently held that crude, disrespectful and even borderline threatening comments are protected concerted activity under Section 7 of the NLRA.
Earlier this month, a federal Administrative Law Judge echoed this reasoning, finding that a school that rescinded the contract of a drama teacher who sent an email insulting school administration is entitled to reinstatement and back wages. In Dalton School, Inc., the employee became upset when the school instructed him to rewrite some passages of a student play based on complaints about its depiction of certain ethnicities. After complying with this request, the drama teacher sent an email to co-workers complaining that the school had not appreciated his efforts, and requesting that they seek an apology from the administration for conduct he described as dishonest, immoral and unintelligent.
The school contended that when asked about the email, the teacher initially denied its existence, later admitting to being the author when presented with a copy. His contract with the school was not renewed, and he filed an unfair labor practice charge, claiming that the email constituted protected concerted activity.
The ALJ agreed, ordering reinstatement and back pay. He characterized the email as “clearly protected concerted activity” discounting the insulting characterization of school administration used by the author. He also rejected the school’s contention that the teacher was fired for initially lying about the email, stating that there was no evidence that this was part of the school’s reasoning at the time of the termination decision.
This case demonstrates that in most circumstances, as long as the referenced communication involves complaints about terms and conditions of employment, the tone used or characterization of management’s motives cannot be relied upon as the basis for disciplinary action against the employee. Employees have wider and wider latitude to use profane, insulting and other language when communicating their dissatisfaction over their treatment. Employers that react to such comments run the risk of expensive and disruptive NLRB proceedings.