The National Labor Relations Board has held that an employee lost the protection of the National Labor Relations Act when he improperly accessed a secure area of the employer’s hotel, even though he did so in order to engage in otherwise protected concerted activity. KHRG Employer, LLC, 366 NLRB No. 22 (Feb. 28, 2018).
The employee, a hotel server and member of the union’s organizing committee, was discharged after leading a delegation of 20 individuals into a secure, non-public area of the hotel to deliver a petition about workplace conditions to the hotel’s general manager. The employee lied to a security officer and used an employee-only passcode in order for the group (consisting of employees and non-employee union committee members and supporters) to gain access to the secured area.
Although delivering the petition was unquestionably a protected concerted act, the Board held the employee’s conduct in improperly accessing the secured area was so egregious that his conduct nonetheless fell outside the NLRA’s protections. The NLRB relied on the balancing test set forth in Consumers Power Co., 282 NLRB 130, 132 (1986), which weighs an employee’s right to engage in protected concerted activity – with some leeway for impulsive behavior – against an employer’s right to maintain order and respect.
Here, the Board determined that the employee’s conduct (particularly his misrepresentation to the security officer) was a premeditated and flagrant violation of the employer’s security protocol, which placed other employees and the hotel property at risk. While the employee attempted to excuse his behavior by identifying other instances in which non-employees gained access to the secure area, the Board noted that these non-employees never had gained access through misrepresentation. The Board concluded the employee’s breach of security could not be “dismissed as an impulsive act” and the employee thus “engaged in sufficiently egregious misconduct to forfeit the Act’s protection.”
Employers are reminded they should not assume that all group activity is protected concerted activity and, thus, exempt from discipline. However, the Board’s standard is difficult to meet , and an employer should carefully analyze all of the facts before considering whether to discharge or discipline an employee who engages in misconduct as part of his or her protected concerted activity.