In KHRG Employer, LLC d/b/a Hotel Burnham & Atwood Cafe, 366 NLRB No. 22 (Feb. 28, 2018), a unanimous panel of the Board held that the employer did not violate the Act when it fired an employee who breached internal security measures to lead a group of employees to present management with a petition. The employee and union were attempting to organize the employees at the employer’s hotel, and held a rally outside the hotel which drew approximately 100 attendees. Shortly after the rally, an employee organizer led a group of approximately six co-workers and fourteen non-employees into the hotel. The employee organizer lied to a security guard, indicating that the group was composed of employees only, and used a security passcode to unlock a door to a secure area. The employee organizer was subsequently terminated for committing a “serious security breach.”

The Board explained the relevant standard thus:

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.

There was no question that the delivery of the petition to management was “protected activity.” But considering the premeditated nature of the conduct, the intentional misrepresentation to the security guard, and the improper use of the passcode, the Board held that the employee

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.

Therefore, the Board found that the employee lost the protection of the Act, and his termination did not violate Section 8(a)(1).