Dear Legal Mailbag:

I thought that I had this whole free speech thing down pat after this great school law course I took. Teachers have a right to speak out on matters of public concern unless the disruptive effect of the speech outweighs the importance of the speech; speech on matters of personal grievance is not protected; blah, blah, blah. But now the teachers’ union is after me, claiming that I somehow violated the rights of one my PIMD (pain-in-my-derriere) teachers.

Here’s what happened. This PIMD employee has been playing fast and loose with her teaching responsibilities. We had to go remote for a week because of COVID, and most of the teachers in my building were real troupers, working synchronously with their students throughout each day. But this PIMD teacher was a no-show for her students one of the days, and she was live only about half of the time on the other four days. When parents complained, I “brought her in” (remotely of course) with her union representative for a little chat. She tried to make excuses, but she was singularly unpersuasive in her responses to my questions. So I wrote her up. End of story, right? Wrong!

The next thing I knew, this PIMD employee was on her Facebook page, crying like a baby about how unfair I am as a principal. To make matters worse, she then put out an open question to her teacher colleagues at my school, asking each of them to tell her (1) how much time they spent on synchronous teaching on remote learning days, and (2) whether the “mean principal” gave them a hard time about their teaching on remote learning days. Well, I was sick of her impertinence, and I wrote her up again because I know that speech on matters of personal grievance are not protected by the First Amendment. But the union is now threatening to file an unfair labor charge against me if I do not rescind the second letter.

Maybe the union didn’t take a good school law course like I did. Can I tell the union that the letter stays in the teacher’s file?

Standing Tall

Dear Tall:

School law is loads of fun, but it can be challenging. There are rules, and there are rules within the rules. You left out an important consideration when you got to the “blah, blah, blah” part of your description of the rules governing the First Amendment rights of teachers and other public employees.

You started off great in describing the free speech rights of teachers and others. Interestingly, for many years public employees had no free speech rights in their public employment. When he served on the Supreme Judicial Court of Massachusetts, the great jurist Oliver Wendell Holmes famously observed:

The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of this contract. The servant cannot complain, as he takes the employment on the terms which are offered to him. On the same principle, the city may impose any reasonable condition upon holding offices within its control.

McAuliffe v. Mayor of New Bedford, 29 N.E. 517 (Mass. 1892) (upholding the firing of a police officer for political activity). The rules have changed, however, and since 1968 the United States Supreme Court has interpreted the First Amendment to confer protections on teachers and other public employees who speak out on matters of public concern. Pickering v. Board of Education, 391 U.S. 563 (1968).

In 1983, the Court refined this rule, holding that public employees enjoy free speech protections when they speak on matters of public concern as long as the importance of the speech outweighs any disruptive effect of such speech. Conversely, speech is not protected if it relates only to a matter of personal grievance, not of public concern. Connick v. Myers, 461 U.S. 138 (1983). Legal Mailbag will give you the benefit of the doubt and presume that you remembered this rule and thought that in complaining about you, the teacher was not engaged in protected speech.

Unfortunately, there is more to the story. While this teacher’s speech was not protected by the First Amendment, it may well be protected by the Teacher Negotiation Act. Based on the original collective bargaining law (the National Labor Relations Act of 1935), many states have conferred union rights on public employees. In Connecticut, we have the Teacher Negotiation Act (TNA) for certified employees, the Municipal Employees Relations Act (MERA) for municipal and non-certified board of education employees, and the State Employees Relations Act (SERA) for state employees. A basic right in such statutory schemes is the right to engage in concerted collective activity without employer interference. In reaching out to her colleagues to see how they have been treated, was this employee simply exercising her rights under the TNA?

While we do not have any public sector cases in Connecticut on social media as concerted activity, we find a cautionary tale in Three D, LLC d/b/a Triple Play Sports Bar and Grille v. N.L.R.B., 629 Fed. Appx. 33 (2d Cir. 2015). There, the Second Circuit affirmed an NLRB ruling that discipline of employees for “liking” and commenting on a Facebook post that was critical of their employer violated their Section 7 rights under the NLRA by restraining the employees from exercising their right to collective, concerted activity. Moreover, the NLRB found in that case that the employer’s social media policy prohibiting “inappropriate discussions about the company” was overly broad and interfered with employee’s protected rights. Three D, LLC d/b/a Triple Play Sports Bar and Grille and Jillian Sanzone and Vincent Spinella, 361 NLRB No. 31 (N.L.R.B. 2014).

This teacher might have a similar claim. These free speech rules can be complicated. But help is on the way. Legal Mailbag has heard about a great webinar on this very subject that CAS is sponsoring next week. You might want to sign up.

Originally appeared in the CAS Weekly Newsletter.