A Chicago hotel operator did not violate the NLRA when it fired an employee who used a security passcode to bring nonemployees into a secured area of the hotel while in the process of presenting a petition to management about working conditions at the hotel. A three-member NLRB panel affirmed a law judge’s determination that the employee was lawfully discharged for breaching hotel security. The law judge should not have analyzed the facts of the case under Wright Line, the Board noted, agreeing with the General Counsel on this point. Even so, he reached the correct result: The employee’s misconduct in the course of his otherwise protected, concerted activity was so egregious as to lose the protection of the Act (KHRG Employer, LLC dba Hotel Burnham & Atwood Cafe, February 28, 2018).
A restaurant server and n open and active member of UNITE HERE’s organizing committee at the hotel, the employee participated in dozens of demonstrations and protests outside the restaurant. On one occasion, he and a group of other employees (including a priest, who was not a hotel employee) presented a petition to management in the hotel’s public lobby, complaining about working conditions. He was not disciplined for any of this activity.
Security breach. But the incident that got him fired was different. Along with about 100 other workers from various employers throughout Chicago, he participated in a union demonstration outside the hotel seeking to make management aware of the working conditions of its housekeeping employees. After the demonstration ended, he led a group of 20 people to deliver yet another petition to management. Only six people in the delegation were hotel employees; nine other individuals worked for the employer at other hotels, and another five were union committee members or just supporters. The employee didn’t know all of their names or where they worked. Still, he led them through a secured access area in the hotel’s basement to deliver the petition to the hotel general manager. On the way, he was stopped by a security guard, who told him that only four employees could go downstairs to the manager’s office. But he lied and said that everyone in the group was an employee, so the guard let the entire group proceed.
Behind locked doors. The group descended the stairs to a locked door, beyond which were the management offices, a secured area where the hotel stores cash, corporate checks, and personnel and financial documents. The area also housed the employee break room, where workers stored personal items. To gain access to the secured area, the employee entered a security passcode on a keypad and, once inside, led the group to the manager’s office, which was too small to fit them all. So part of the group of nonemployee protesters was left outside the office, unattended, in the secure area. In all, the delegation was in the secure area for about two minutes, and the group was not disruptive, although several employees who were in the break room at the time complained to management later about their presence in the secure area.
Lost the NLRA’s protection. It was undisputed that delivering a petition to management about working conditions is protected, concerted activity. And the employer asserted that the employee was discharged for using his passcode to admit nonemployees into the secure area while engaged in that protected activity. “When, as here, an employer defends a discharge based on employee misconduct that is a part of the res gestae of the employee’s protected concerted activity, the employer’s motive is not at issue,” the Board said, explaining why Wright Line didn’t apply. Rather, the question in such cases is whether the misconduct was so egregious that the otherwise protected activity loses the protection of the Act. In this case, it was.
Lies to security guard. What mattered most to the Board was that the employee had lied to the security guard that the delegation consisted only of employees, and had used his passcode to provide nonemployees with unauthorized access to the secure area. This conduct “flagrantly violated the hotel’s security protocol and unnecessarily placed at potential risk the security of other employees and the Respondent’s property, including valuables, confidential files, and financial documents,” the Board reasoned. Moreover, the employee’s security breach can’t be brushed aside as an impulsive act—as the Board saw it, this was “a predetermined course of action.” He knew there were nonemployees in his delegation, and he knew he would be breaching the hotel’s security protocol by acting as he did. Therefore, the hotel did not run afoul of the Act when it fired him.
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