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NLRB Upholds Discharge of Employee Whose Protected Activity Included Intentional Deception

By Erin Fowler, Amy Moor Gaylord, and Chris Johlie - Franczek Radelet P.C.

March 7, 2018

KHRG Employer, LLC d/b/a Hotel Burnham & Atwood Café, 366 NLRB No. 22 (2018)

On February 28, 2018, the National Labor Relations Board (“Board”) issued an important decision for employers and employees, reminding all that protected activity under the National Labor Relations Act does not always shield an employee from discipline.

In KHRG Employer, LLC, an employee, Evan Demma, spent two years attempting to organize the Hotel Burnham & Atwood Café located in Chicago. As part of his organizing efforts, in 2014, Demma participated in demonstrations and protests outside of the hotel. Additionally, in November 2014, Demma, along with a group of hotel employees and a priest, presented the hotel’s General Manager with a petition concerning employee working conditions. This petition was presented in the lobby of the hotel. At no point did the hotel take any disciplinary action against Demma or other employees for participating in the union’s organizing efforts.

That all changed in 2015 when, on October 9th, Demma led a group of 20 individuals to deliver a second petition concerning working conditions to the hotel’s GM. This time, however, the GM was in her office in a secured area of the hotel. A security guard stopped the group at the hotel’s entrance and informed Demma that only four employees could continue to the managers’ offices. Demma responded that every individual in the group was an employee who had a right to deliver the petition in question – a statement Demma knew to be false because only six members of the group were hotel employees. Having made their way around the security guard, Demma led the group to the secure, password-protected area of the hotel. Behind the secured door were not only managers’ offices, but also “cash, corporate checks, personnel files, guests’ contracts, financial reports, and the personal items of other employees.” At all times, the group was “quiet and non-disruptive.”

The next day, after the petition had been delivered, the hotel investigated Demma’s actions. As part of the investigation, the hotel discovered that several employees, who were in the break room in the secure area at the time Demma’s group entered, were upset that nonemployees were allowed in the secured area. Finding that Demma used a secure passcode to provide unauthorized access to nonemployees, the hotel suspended and discharged Demma for violating its security policy.

There was no dispute that the delivery of the petition by employees constituted protected concerted activity. The Board determined, however, that Demma’s actions “lost the protection of the Act” because Demma “flagrantly violated the hotel’s security protocol and unnecessarily placed at potential risk the security of other employees and the [hotel’s] property.” The Board found that this deliberate and predetermined breach of hotel security could not be dismissed as an impulsive act and was sufficiently egregious misconduct to forfeit the Act’s protection. Accordingly, Demma’s discharge was found to be lawful.

This is an interesting decision. In a time when the Board is sharply divided along political lines, not even the Board’s Democratic appointees (Members Pearce and McFerran) were willing to excuse Demma’s deceitful behavior even though it occurred during otherwise protected activity. They joined Republican-appointed Chairman Marvin Kaplan in a unanimous decision upholding the hotel’s response to Demma’s misconduct. Unanimous Board decisions may be few and far between for the foreseeable future, but at least the decision here will give employers some solace in knowing that the Board recognizes there is a line that, when crossed, allows employers to effectively respond to egregious misconduct, even where it is intertwined with protected activity.

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