United States: Impulse Control? Nlrb Finds Employee's Misconduct To Be Deliberate And "Predetermined" And Not Protected

The past few weeks on the Labor Board front have been fairly routine, save for, of course, the high drama associated with the NLRB reversing its own decision (lest anyone think this is a super significant development, remember that this agency had scores of decisions overturned for lacking a proper quorum only to wait, quietly, and simply re-affirm the vast majority).

Legal drama is not as fun, or as interesting, as the day to day labor situations. A frequent topic here has been the intersection of protected activity and misconduct. More specifically, when does an employee's otherwise protected activity become unprotected? There are endless situations and this is the stuff that makes labor relations interesting (and vexing, at times). The Board recently issued a decision in what we'll call "the case of the unauthorized passcode use."

In KHRG Employer LLC, 366 NLRB No. 22 (February 28, 2018), a hotel employer had been faced with an ongoing organizing drive. Many employees participated. One employee, a server at a restaurant on hotel premises, had engaged in protest activities, which included presenting a petition to hotel management inside the hotel lobby and picketing outside the hotel. The server had not been disciplined for any of these activities.

Server Uses Passcode To Allow Delegation To Enter Secured Area

On one occasion the server led a delegation of nine employees and five non-employees into the hotel to present another petition to the hotel's General Manager who was in her office in a secure area of the hotel's basement. The server did not know the names of all the folks in the delegation. The group was challenged by a security guard who informed the delegation that only 4 employees could proceed to the secure area of the hotel. Although the server was aware there were non-employees in the delegation, he falsely informed the security guard that all 14 of the group were employees and that they all had "right" to deliver the petition. The security guard let the group pass.

The secured area of the hotel is behind a locked door and is the place where the employer stores cash, corporate checks, guest contracts and personnel files. It is also the area of where hotel managers had their offices. In order to enter the secured area the server had to use a passcode, which he did. The server then led the delegation to the General Manager's office where the petition was delivered. The entire sequence of events took 5 to 10 minutes, 2 of which were spent in the secured area.

Several employees complained that the delegation had entered the secure area, emailing both the server and management. The server was fired for a "serious security breach." The server then filed charges.

The ALJ recommended dismissing the complaint although she applied the test normally reserved for evaluating whether employee speech is protected. The General Counsel appealed.

NLRB: The Server's Actions Were Not Impulsive But Predetermined

A three person panel of the Board (Kaplan, McFerran and Pearce) voted unanimously to affirm the dismissal. The Board began its analysis by noting that "[t]here is no dispute that the delivery by the petition by employees constituted protected concerted activity." The Board then noted that the employer had defended that the delivery of the petition was not the reason for the discharge; rather, the security breach constituted misconduct for which the employee deserved to be terminated. The Board noted:

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. Instead, such discharges are considered unlawful unless the misconduct at issue was so egregious as to lose the protection of the Act. See, e.g., Consumers Power Co., 282 NLRB 130, 132 (1986).

To answer this question, the Board "balances employees' right to engage in concerted activity, allowing some leeway for impulsive behavior, against employers' right to maintain order and respect." Piper Realty Co., 313 NLRB 1289, 1290 (1994).

Applying this standard, the Board noted that while the delegation was non-disruptive, "the dispositive point is that it advanced to the secure area only because [the server] misrepresented to the security guard that the delegation consisted only of employees and the delegation was able to enter the secure area only because [the server] used the passcode to provide the group unauthorized access." The Board evaluated whether the employer had previously condoned unauthorized entry into the secured area, finding that while vendors and some family members of employees used the passcode, these individuals were all known to the employer. By contrast, the server had let in a "significant" number of non-employees, some of whom he did not personally know.

In dismissing the complaint, the Board noted that the "breach of security cannot be dismissed as an impulsive act. It was a predetermined course of action" which lost protection of the Act.


This case joins that of the errant human resources manager and the strident union adherent as another example of the complicated matters that confront employers when employees invoke protected concerted activity to justify behavior. Note, for example that the security guard relented and allowed a 14 person delegation proceed when the employee-server invoked the "rights" of "employees" to deliver a petition.

What made this case somewhat easier to decide (it is a rare 3-person panel made up of 2 Democrats and 1 Republican) is that it had to do with conduct as opposed to an evaluation if employee speech. The Board found it significant that the server did not know the names of the persons he was letting into the secured area. In this day and age, employers have an obligation to secure their premises. Of equal importance was that the employer had not allowed such breaches to occur. Of course, had the Board ruled that the discharge was unlawful, then it would have opened up potential floodgates where any access of an employer in the name of protected activity might have to be condoned.

The case illustrates the importance of articulating the reason for the discharge,–here "serious security breach." The fact that the employer had not intertwined the delegation or other protected activities into the reason for the discharge very likely helped keep the focus on the misconduct. Of equal importance is that the case was not cluttered with other allegations of unlawful conduct such as threats or discipline for protected activities. What the Board had before it was an employer that understood that employees have the right to engage in certain activities; the employer simply could not condone the security breach.

Impulse Control? Nlrb Finds Employee's Misconduct To Be Deliberate And "Predetermined" And Not Protected

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