The National Labor Relations Act (NLRA) gives employees the right to engage in protected concerted activity. The NLRA also makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights” under the Act. Despite the NLRA’s broad protections, an employer may take action against an employee whose conduct exceeds the scope of the Act’s protections. The conduct underlying a recent National Labor Relations Board decision reinforces this point. KHRG Employer, LLC d/b/a Hotel Burnham & Atwood Cafe and UNITE HERE, Local 1, AFL-CIO, Case 12-CA-162485 (Feb. 28, 2018).
In 2014, UNITE HERE began a campaign to organize employees at the Hotel Burnham (the Hotel) and Atwood Cafe (the Cafe) in Chicago. Evan Demma worked as a server at the Cafe and was a member of the union’s organizing committee. In 2014 and 2015, Demma participated in a number of union demonstrations and protests outside the Cafe. The Hotel and the Cafe did not discipline Demma or any other employee who participated in union-related activities for that activity. Nor did the Hotel or the Cafe discipline Demma or other employees after they presented a petition to the employer’s general manager in a public lobby of the hotel.
Demma’s conduct on October 9, 2015, however, was different. On October 9, Demma and roughly 100 other individuals protested outside the Hotel regarding working conditions of housekeeping employees. During the demonstration, Demma led 20 people, six of whom were Hotel employees, to deliver another petition to the general manager. The other 14 individuals worked for affiliated hotels and some worked for other employers. Demma did not know all of the individuals in the group or where they worked.
Demma knew that the group would have to go to a secured area to deliver the petition to the general manager (in contrast to the public lobby where he had previously delivered a petition). The group was stopped by a security guard who advised the entourage that only four employees could continue to the manager’s office. Demma responded that the entire group worked for the Hotel and had a right to deliver the petition. The security guard allowed the group to pass.
Demma then led the group through a locked door where the Hotel stores cash, corporate checks, personnel files, guests’ contracts, and financial reporting papers, and where employees store personal items. Demma had to enter a security passcode to enter the secured area. Once in the secured area, Demma and a few of the protestors went into the manager’s office, while the rest were left unattended in the secured area.
Cafe management started investigating the entry into the secured area the next day. The Cafe suspended Demma on October 15 and discharged him on October 22 for committing a “serious security breach.”
The issue before the NLRB was whether Demma was entitled to the Act’s protections or if his conduct on October 9 was sufficiently egregious to remove him from the NLRA’s sphere. The Board concluded that Demma was lawfully discharged because he intentionally used a security passcode to allow a group of employees and nonemployees into a secured area of the hotel, even though he did so while in the process of presenting a petition to management.
While Demma had engaged in protected concerted activity, his misconduct — leading non employees into a secured area — was so egregious as to lose protection of the Act. The Board summarized its conclusion by stating, “Demma misrepresented to the security guard that the delegation consisted only of employees and the delegation was able to enter the secure area only because Demma used the passcode to provide the group unauthorized access. Demma thereby 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. . . . This breach of security cannot be dismissed as an impulsive act. It was a predetermined course of action.”