NLRB: Employee That Failed to Follow Security Procedures Was Lawfully Terminated While Engaged in Concerted Protected Activity

KHRG Employer, LLC dba Hotel Burnham & Atwood Cafe - NLRB

Facts:  Evan Demma ("Demma") worked as a server at the Atwood Cafe ("Atwood").  In 2014, Unite Here, Local 1, AFL-CIO, began a campaign to represent KHRG Employer, LLC's ("KHRG") employees.  Throughout the next two years, Demma participated in several union demonstrations and rallies outside Atwood Cafe.  In November 2014, Demma joined a group of other employees and a priest to present a petition about working conditions to KHRG's General Manager.  In October 2015, Demma and about 100 other employees from various employers in the Chicago area took part in a demonstration outside the hotel to make management aware of working conditions.  After the demonstration started, Demma led a group of 20 people (only six of whom were Hotel Burnham employees) to deliver another petition to the General Manager.  To do so, the group was required to enter a secured area of the hotel.  Demma falsely told a security guard that everyone in the group was a hotel employee and took the group into the secured area.  To access the secured area, Demma used a security passcode on a keypad.  In the secured area, cash, corporate checks, personnel files, guests' contracts, and financial reporting papers wore stored.  When the petition was being delivered to the General Manager, some in the group remained unsupervised outside the General Manager's office.  

A subsequent investigation into Demma's actions led to his suspension and termination a few weeks later for committing a "serious security breach."  Unite Here, Local 1, AFL-CIO filed a charge that KHRG Employer, LLC dba Hotel Burnham & Atwood Cafe violated Section 8(a)(1) of the National Labor Relations Act ("NLRA") when it terminated Demma for engaging in concerted protected activity.  An Administrative Law Judge ruled that Demma was lawfully terminated for breaching the security protcol and therefore the termination did not violate the NLRA.

Finding:  The NLRB noted at the outset that the delivery of a petition by employees constitutes protected concerted activity under the NLRA.  In this instance, Demma was told he was terminated for using his passcode to allow nonemployees into the secured area while he was delivering the petition.  In this instance, when an employer defends a discharge based upon 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.  Instead, these discharges are considered unlawful unless the misconduct is so egregious as to lose the protections of the NLRA.  Applying this standard, the NLRB held that Demma's actions on that October day lost the protections of the NLRA.  Although the delegation's action in and of itself was not disruptive, the delegation advanced to the secured area only because Demma lied to the security guard about the status of the group and used his passcode to allow the group into the secured area (with some being unsupervised for a period of time while the petition was being delivered to the General Manager).

The NLRB held that Demma's conduct flagrantly violated the hotel's security protocol and unnecessarily placed at risk other employees, the hotel's property, confidential files, and other valuables.  Relying on a 2009 NLRB decision in Akal Security, Inc., the NLRB noted that an employee loses the protections of the NLRA by failing to follow security procedures.

Opinion:  The three member NLRB, comprised of Chairman Kaplan and Members Pearce and McFerran upheld a ruling from an Administrative Law Judge that an employee lost the protections of Section 8(a)(1) of the NLRA and was lawfully terminated when he took a group (comprised of both employees and non-employees) into a secured area of the hotel and flagrantly violated the hotel's security protocol when the group delivered a petition to a hotel General Manager.

The Takeaway:  Employees, use this decision as a point of reference:  Just because you are engaged in concerted protected activity does not mean that gives you a free pass to do as you please.  As the NLRB was quick to point out in this case, the protections of the NLRA do not apply when an employee fails to follow security procedures.  In this instance, I think the NLRB was correct to point out that Demma's lying to the security guard about the group's employment status coupled with the fact that he willfully allowed the group into the secured area (and let some of them be unsupervised for a period of time) subjected the hotel, its employees, and customers to a serious security threat.  As a result, I believe the NLRB was correct to hold that Demma's termination was lawful, even though he was engaged in concerted protected activity at the time he took the group into the secured area.

Date:  February 28, 2018

Decision:  http://hr.cch.com/eld/KHRGEmployer022818.pdf