The National Labor Relations Board has held that an employee lost the protection of the National Labor Relations Act when he improperly accessed a secure area of the employer’s hotel, even though he did so in order to engage in otherwise protected concerted activity. KHRG Employer, LLC, 366 NLRB No. 22 (Feb. 28, 2018).

The employee, a hotel server and member of the union’s organizing committee, was discharged after leading a delegation of 20 individuals into a secure, non-public area of the hotel to deliver a petition about workplace conditions to the hotel’s general manager. The employee lied to a security officer and used an employee-only passcode in order for the group (consisting of employees and non-employee union committee members and supporters) to gain access to the secured area.

Although delivering the petition was unquestionably a protected concerted act, the Board held the employee’s conduct in improperly accessing the secured area was so egregious that his conduct nonetheless fell outside the NLRA’s protections. The NLRB relied on the balancing test set forth in Consumers Power Co., 282 NLRB 130, 132 (1986), which weighs an employee’s right to engage in protected concerted activity – with some leeway for impulsive behavior – against an employer’s right to maintain order and respect.

Here, the Board determined that the employee’s conduct (particularly his misrepresentation to the security officer) was a premeditated and flagrant violation of the employer’s security protocol, which placed other employees and the hotel property at risk. While the employee attempted to excuse his behavior by identifying other instances in which non-employees gained access to the secure area, the Board noted that these non-employees never had gained access through misrepresentation. The Board concluded the employee’s breach of security could not be “dismissed as an impulsive act” and the employee thus “engaged in sufficiently egregious misconduct to forfeit the Act’s protection.”

Employers are reminded they should not assume that all group activity is protected concerted activity and, thus, exempt from discipline. However, the Board’s standard is difficult to meet , and an employer should carefully analyze all of the facts before considering whether to discharge or discipline an employee who engages in misconduct as part of his or her protected concerted activity.


Photo of Kathryn J. Barry Kathryn J. Barry

Kathryn Barry is an Associate in the Long Island office of Jackson Lewis P.C.  Ms. Barry advises clients on compliance with various state and federal laws affecting the workplace, including Title VII, Family and Medical Leave Act, Americans with Disabilities Act, Age Discrimination in Employment Act, Fair Labor Standards Act and New York State and City laws.  She also assists federal contractors in the preparation of affirmative action plans and defends contractors against allegations of discrimination on the basis of race, color, religion, sex, national origin, disability, and veteran status in connection with audits by the Office of Federal Contract Compliance Programs and in related litigation brought on the OFCCP’s behalf by the Solicitor’s Office at the U.S. Department of Labor.

Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.