KHRG Employer, LLC d/b/a Hotel Burnham & Atwood Cafe

National Labor Relations Board - Board Decisions

Feb 28, 2018

366 NLRB No. 22 (N.L.R.B. 2018)

366 NLRB No. 22
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
KHRG Employer, LLC d/b/a Hotel Burnham & At-
wood Cafe and UNITE HERE, Local 1, AFL–
CIO. Case 13–CA–162485
February 28, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
On January 27, 2017, Administrative Law Judge
Christine E. Dibble issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
the Respondent filed an answering brief, and the General
Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.2
This case concerns an employee’s intentional use of a
security passcode to lead a group of employees and
nonemployees into a secured area of the Respondent’s
hotel while in the process of presenting a petition to
management. The judge found that the Respondent’s
decision to discharge the employee for breaching the
hotel’s security did not violate Section 8(a)(1). On ex-
ceptions, the General Counsel argues the judge erred by
analyzing the facts under Wright Line,3 rather than de-
termining whether the employee engaged in misconduct

1 The General Counsel has implicitly excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
2 We do not rely on the judge’s citation to Brighton Retail, Inc., 354
NLRB 441 (2009), a decision that issued at a time when the Board
lacked a quorum. We note that Hoodview Vending Co., 359 NLRB 355
(2012), cited by the judge, was reaffirmed by the Board at 362 NLRB
No. 81 (2015). The judge also cited Relco Locomotives, Inc., 358
NLRB 298 (2012), a case that was decided by a panel including inval-
idly appointed Board Members. However, prior to the issuance of the
Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550
(2014), the United States Court of Appeals for the Eighth Circuit en-
forced the Board’s Order, see NLRB v. Relco Locomotives, Inc., 734
F.3d 764 (8th Cir. 2013), and there is no question regarding the validity
of that court’s judgment.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
in the course of otherwise protected concerted activity
that was so egregious as to lose the protection of the Act.
The General Counsel contends that, under the latter
standard, the discharge was unlawful. For the reasons set
forth below, we agree with the General Counsel that the
judge applied the wrong standard, but we nonetheless
conclude that the discharge was lawful.
FACTS
The Respondent operates a number of hotels and res-
taurants in Chicago, Illinois, including the Hotel Burn-
ham and Atwood Cafe. Beginning in 2014, the Union
engaged in a campaign to represent the Respondent’s
employees. Evan Demma, a member of the Union's or-
ganizing committee, worked as a server at the Atwood
Cafe. In 2014 and 2015, Demma participated in dozens
of Union-organized demonstrations and protests outside
the Atwood Cafe. There is no evidence that the Re-
spondent disciplined Demma, or any other employee, for
that activity. In November 2014, Demma, joined by a
group of other employees and a priest, presented a peti-
tion about working conditions to Respondent General
Manager Tonya Scott in a public lobby on the first floor
of the hotel. The Respondent did not discipline Demma
or any other employee for presenting the petition inside
the hotel lobby.
On October 9, 2015, Demma and about 100 other em-
ployees from various employers throughout Chicago
participated in a union demonstration outside the hotel to
make management aware of the working conditions of
the Respondent’s housekeeping employees. Shortly after
the demonstration started, Demma led a delegation of 20
people, only six of whom were Hotel Burnham employ-
ees, to deliver a new petition to manager Scott. The re-
mainder of the delegation consisted of nine persons em-
ployed by the Respondent at other hotels and five union
committee members or supporters who were not em-
ployed by the Respondent. Although Demma had partic-
ipated in various union committee meetings, pickets, and
demonstrations with everyone in the delegation, he did
not know all of their names or where they worked.
Unlike the November 2014 petition delivery, Demma
knew that the delegation would have to go to a secured
access area in the basement of the hotel to personally
deliver the petition to Scott. Once the delegation mem-
bers entered the hotel vestibule, a security guard sta-
tioned at the entrance to the hotel lobby stopped them to
inform Demma that only four employees could continue
downstairs to the managers’ offices. Although he was
aware that nonemployees were in the delegation, Demma
falsely replied that everyone in the delegation was an
employee with the right to deliver the petition. The secu-
rity guard then allowed the entire delegation to pass.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The delegation walked through the main lobby and
down a flight of stairs to a locked door; beyond the
locked door were the managers’ offices, employee break
room, and kitchen. In this secured area, the Respondent
stores cash, corporate checks, personnel files, guests’
contracts, and financial reporting papers, and employees
store personal items. To gain access to the secured area,
Demma had to enter a security passcode on a keypad.
Once inside, Demma led the delegation to manager
Scott’s office. Because Scott’s office was very small,
only Demma and a few of the protestors were able to
squeeze into it. The rest were left unattended outside.
Scott informed Demma that they could not all enter her
office. At that point, Demma and one other employee
presented the petition to Scott and asked for a response
within a week. Scott responded that she would read the
petition and get back to him. In the process of leaving
the secured area, the delegation passed several employ-
ees in the employee break room. The whole sequence of
events took approximately 5 to 10 minutes, and the group
was in the secured area for approximately 2 minutes. At
all times, the delegation was quiet and non-disruptive.
On October 10, Restaurant General Manager Damien
Palladino began an investigation into the delegation's
entry into the secured area. During this time, several
employees, including three employees who were in the
break room at the time, emailed Demma and manage-
ment to voice their displeasure at the presence of nonem-
ployees in the secured area.4 The investigation resulted
in Demma’s suspension on October 15 and discharge on
October 22 for committing a “serious security breach.”
ANALYSIS
There is no dispute that the delivery of the petition by
employees constituted protected concerted activity. The
Respondent maintains that it discharged Demma for us-
ing the passcode to admit nonemployees to the secured
area, which occurred while the delegation was delivering
the petition. When, as here, an employer defends a dis-
charge based on employee misconduct that is a part of
the res gestae of the employee’s protected concerted ac-
tivity, the employer’s motive is not at issue. Instead,
such discharges are considered unlawful unless the mis-
conduct at issue was so egregious as to lose the protec-
tion of the Act. See, e.g., Consumers Power Co., 282
NLRB 130, 132 (1986) (“[W]hen an employee is dis-
charged for conduct that is part of the res gestae of pro-
tected concerted activities, the relevant question is

4 The record contains other instances of nonemployee access to the
secured area, including by third-party vendors and family members of
employees. There is no evidence that any of these individuals gained
access to the secured area through misrepresentation.
whether the conduct is so egregious as to take it outside
the protection of the Act . . . .”) (footnote omitted). To
answer this question, the Board balances employees’
right to engage in concerted activity, allowing some lee-
way for impulsive behavior, against employers’ right to
maintain order and respect. Piper Realty Co., 313 NLRB
1289, 1290 (1994); NLRB v. Thor Power Tool Co., 351
F.2d 584, 587 (7th Cir. 1965), enfg. 148 NLRB 1379
(1964).5
Applying the appropriate standard to the facts present-
ed, we find that Demma's actions on October 9 lost the
protection of the Act. While the delegation’s action was
not disruptive, the dispositive point is that it advanced to
the secure area only because Demma misrepresented to
the security guard that the delegation consisted only of
employees and the delegation was able to enter the se-
cure area only because Demma used the passcode to pro-
vide the group unauthorized access.6 Demma thereby

5 The judge correctly found that the Board’s four-factor analysis set
forth in Atlantic Steel Co., 245 NLRB 814, 816 (1979), is ill-suited to
determining whether an employee has lost the Act’s protection by
conduct that does not occur during a workplace conversation with a
supervisor or manager. See generally Triple Play Sports Bar & Grille,
361 NLRB 308, 310-311 (2014) (discussing limits of Atlantic Steel
analysis), enfd. 629 Fed.Appx. 33 (2d Cir. 2015). However, contrary to
the judge, this does not mean that the mixed motivation Wright Line
test applies. The Respondent’s motive is still not at issue, and we look
to the totality of circumstances to determine whether the employee’s
misconduct was so egregious as to forfeit the Act’s protection. See
Honda of America Mfg., 334 NLRB 746, 749 (2001) (language in
newsletters “was so offensive as to render the otherwise protected
newsletters unprotected”).
6 Although the Board has found that an employer that has previous-
ly condoned similar behavior can negate the egregiousness of an em-
ployee’s misconduct, see Pier Sixty, LLC, 362 NLRB No. 59, slip op. at
2–3 (2015) (evaluating whether the employer had previously condoned
offensive language similar to that used by employee discharged for
using obscene and vulgar language), enfd. 855 F.3d 115 (2d Cir. 2017),
Demma’s actions are in marked contrast with other instances in which
nonemployees gained access to the secured area. For example, alt-
hough certain of the Respondent’s vendors regularly accessed the se-
cured area, the record establishes that the Respondent had provided
those vendors with the keypad code, the Respondent had preexisting
relationships with those vendors, and the vendors typically sent the
same delivery people so the Respondent was familiar with them. Simi-
larly, although employees’ family members occasionally accessed the
secured area in order to meet employees, it is undisputed that the Re-
spondent and other employees knew those family members and thus
could easily identify them if necessary. By contrast, in this case,
Demma provided access to a significant number of nonemployees
whom he only vaguely knew from union committee meetings, pickets,
and demonstrations, which presented a materially greater risk to the
Respondent’s property and personnel alike. Further, as described,
Demma facilitated this breach of the secured area only by misrepresent-
ing the nonemployees’ status to the Respondent’s security personnel.
In Chairman Kaplan's view, Demma’s use of his security passcode
to gain unpermitted entry for nonemployees to the secured area, stand-
ing alone, is sufficiently egregious misconduct to warrant loss of statu-
tory protection.
KHRG EMPLOYER, LLC D/B/A HOTEL BURNHAM & ATWOOD CAFÉ 3
flagrantly violated the hotel’s security protocol and un-
necessarily 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 impul-
sive act. It was a predetermined course of action. Dem-
ma knew that there were nonemployee union representa-
tives in his delegation and that, if he were to present the
petition to Scott while she was in her office, he would
have to breach the hotel’s security protocol by improper-
ly using the passcode to provide the nonemployee mem-
bers of the delegation access to the secured area. Com-
pare Akal Security, Inc., 354 NLRB 122, 126 (2009)
(employees lost the protection of the Act by failing to
follow security procedures), incorporated by reference in
355 NLRB 584 (2010).
Based on the circumstances of this case, we conclude
that Demma engaged in sufficiently egregious miscon-
duct to forfeit the Act’s protection. Accordingly, the
Respondent did not violate Section 8(a)(1) by discharg-
ing him.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. February 28, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Andrea James, Esq., for the General Counsel.
Brian M. Stolzenbach, Esq., Karla Sanchez, Esq., and Christo-
pher W. Kelleher, Esq, for the Respondent.
David L. Barber, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, Administrative Law Judge. This case
was tried in Chicago, Illinois, on May 18 and 19, 2016. Unite
Here Local 1, AFL–CIO (the Union), filed the charge in Case
13–CA–162485 on October 22, 2015.1 The Regional Director
for Region 13 of the National Labor Relations Board
(NLRB/the Board) issued the complaint and notice of hearing
on January 25, 2016. The Respondent filed a timely answer on
February 9, 2016, denying all material allegations in the com-
plaint.
The complaint alleges that the Respondent violated Section
8(a)(1) of the National Labor Relations Act (NLRA/the Act)
when on or October 22, the Respondent discharged employee
Evan Demma for engaging in concerted protected activity.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent, and the Charging
Party I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company, operates hotels
and restaurants in Chicago, Illinois, and other cities. The Re-
spondent, for the past calendar year, derived gross revenue in
excess of $500,000; and purchased and received at its Chicago
facility goods and services in excess of $5000 directly from
points outside the State of Illinois. Therefore, I find that at all
material times it has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Respondent’s operation
The Respondent, a limited liability company, operates hotels
and restaurants in Chicago, Illinois, among other cities. The
hotel and restaurant at issue are the Hotel Burnham (the Burn-
ham) and Atwood Café (the Atwood). The Atwood is located
within the Burnham which is housed in a historical building in
Chicago’s downtown business district. The public can access
the Atwood through the lobby of the Burnham which has an
entrance on Washington Street. The Atwood also abuts State
Street and has a patio for outdoor dining in the warmer months.
The Respondent employs, among others, housekeepers and
managers at the Burnham; and managers, servers, “busboys,”
food runners, and bartenders at the Atwood.
Damien Palladino (Palladino) has been employed by the Re-
spondent for 8 years and is the current general manager of the
Atwood. He is responsible for overseeing its overall opera-
tions. During the period at issue Brian Millman was the execu-
tive chef and part of the management staff. The remaining
management and administrative staff for the Burnham and the
Atwood included, among others: Hotel General Manager Tonya
Scott (Scott), Atwood Manager John Radosevich (Radosevich),
Atwood Manager Kelly Stepto (Stepto), Sous Chef Ryan Bell
(Bell), Human Resources Director Samantha Polk (Polk), Sen-
ior Regional Director of People and Culture for the Kimpton
Group Jennifer Hayes (Hayes), Assistant Director of Finance

1 All dates are in 2015, unless otherwise indicated. In addition, at the
start of the hearing, the General Counsel moved to amend the complaint
to correct the name of the Respondent in the caption and in the intro-
ductory paragraph of the complaint to read as stated in the above cap-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Angel Patterson (Patterson), and staff accountant Yuliya She-
garfi (Shegarfi).2 Although the Burnham and the Atwood have
a separate management teams overseeing their staffs (e.g.,
housekeepers, hotel maintenance, servers), they are served by
the same administrative personnel.
B. October 9, Employee Demonstration
By October 9, the Union had been engaged in a lengthy
campaign to get the Respondent to agree to a card-check and
neutrality agreement with the Union. The Union had a commit-
tee with about six committee members who worked on the
effort and assisted in planning and coordinating other union
organizing activities. Evan Demma, a server at the Atwood and
avid union organizer, was a part of the committee and the or-
ganizing campaign. As a committee member, Demma helped
in the effort to organize the Burnham and the Atwood workers.
In November 2014, for example, Demma, a group of the At-
wood employees, and a priest entered the Burnham to present a
petition to Scott about working conditions. In addition, from
October 2014 to 2015, Demma participated in about 20 to 30
union organized demonstration in front of the Atwood. He also
joined in two union organizing protests from January to Febru-
ary. From March to May, Demma increased his participation in
union protests outside the Atwood to once a week; and again
between May and September when he joined in union protests
twice a week.
For the month leading up to October 9, the union committee
members had worked on planning a demonstration to occur on
October 9. On October 9, the Union’s demonstration began
about 4:30 p.m. in front of the Burnham and the Atwood with
about 100 workers from various employers throughout the city
of Chicago. Some of the protestors held signs reading “No
Contracts—Unite Here Local 1.” One of the goals of this
demonstration was to make management aware of the working
conditions and injuries suffered by the Burnham’s housekeep-
ing staff. In order to maintain order and not block the entrance
to the hotel and restaurant, the Union brought in marshals. One
of the marshals was Rachael Brumleve (Brumleve), a union
employee, who was responsible for ensuring that the demon-
strators did not block the public sidewalks, passageways and
hotel and restaurant entrances. The demonstration lasted ap-
proximately 2 hours.
C. Workers Delivery of Petition to Management on October 9
Approximately 30 minutes into the October 9 demonstration,
Demma, along with his corworker KarinaTufino (Tufino) and
about 20 other demonstrators went to confront Scott by entering
the Burnham’s lobby through the public entrance facing Wash-
ington Street. Tufino, Vina Arceo (Arceo), Edgar Vasquez
(Vasquez), Sylverio Arrenos (Arrenos), and Victor Pariente
(Pariente) were Demma’s coworkers and part of the group of
20 demonstrators. The remaining, approximately 12, demon-
strators worked either for other Kimpton properties in Chicago

2 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for General Counsel’s exhibit; “R. Exh.” for Re-
spondent’s exhibit; “CP” for Charging Party’s exhibit; “GC Br.” for the
General Counsel’s brief; “R. Br.” for Respondent’s brief; and “CP Br.”
for Charging Party’s brief.
or for other unknown employers. The group’s intention was to
go to Scott’s office and deliver a petition detailing the house-
keeping staff’s complaints of experiencing excessive pain while
performing their job duties and recommendations for reducing
the injuries.
Upon entering the building, the group encountered a security
guard working at the property. He blocked their entrance and
informed them that management would only allow four em-
ployees to go downstairs to the executive offices and the em-
ployees’ only area. Demma responded that all of the demon-
strators with him worked for the Respondent and had a right to
deliver the petition to management. Therefore, the security
guard allowed them to pass. The group proceeded through the
Burnham’s lobby, past the lobby side entrance of the Atwood,
and down a flight of stairs. The stairs opened onto an open
public area of the basement with public restrooms and several
locked doors. The locked doors led to the employee locker
room and break room, the Atwood’s kitchen, mechanical room,
plumbing/electrical/fire room, food and beverage office, house-
keeping office, and administrative and management suite of
offices.3 Once on the basement level, Demma and the group of
about 20 demonstrators proceeded towards Scott’s office pass-
ing the kitchen area, housekeeping office, and employee break
room.
The area containing the management offices is secured by
two doors with passcode protected keypads. As an employee of
the Respondent, Demma had a passcode to unlock the doors to
the secured areas of the basement level of the building.4 After
leading the group of protestors to the lower level, Demma en-
tered the passcode into the keypad. The group walked through
the door into a small common area for the management and
administrative offices. Demma continued into Scott’s office,
which was one of the offices off of the common area. Because
Scott’s office was very small, only Demma and a few of the
protestors were able to squeeze into it. Scott protested that they
could not all come into her office; and she would only speak
with Demma and Tufino. At this point Demma told Scott that
their only purpose was to deliver to her a petition which de-
tailed problems with the working conditions experienced by the
housekeepers. He asked that she respond to the petition by
October 16. Scott informed him that she would read it and get
back with him. The encounter with Scott lasted about 5 to 10
minutes. The group was then escorted out of the building by
Radosevich.5 As they were leaving, the group passed a few

3 The administrative and management office suite contains confi-
dential information and valuable items. It is undisputed that in these
secured areas Respondent stores cash, corporate checks, personnel files,
guests’ contracts, and financial reporting papers.
4 The Respondent’s vendors are allowed into the basement’s se-
cured areas because that is where goods are received. Certain of the
Respondent vendors are given the passcode for access to the secured
areas of the basement level of the building. These vendors are the ones
who: deliver prior to any of the employees arriving at work (about 5:30
a.m.); vendors that regularly deliver to the Burnham or the Atwood;
and vendors that arrive during the Respondent’s busiest times (e.g.,
lunch, dinner).
5 Contrary to Demma’s testimony, Tufino testified that no one es-
corted them out of the building after their encounter with Scott. Re-
KHRG EMPLOYER, LLC D/B/A HOTEL BURNHAM & ATWOOD CAFÉ 5
employees in the employee break room. On their way out of
the building, Demma and the protestors did not speak to any-
one, chant or take any other disruptive action. Upon exiting the
building, the group rejoined the other individuals demonstrating
outside in front of the Atwood.
D. Post October 9 Demonstration
After participating in the October 9, demonstration, Demma
was not scheduled to return to work until October 15. During
the period from October 9 to 14, he was not contacted by man-
agement. However, Demma began to receive emails from
about nine coworkers complaining about him entering the se-
cured area on October 9 with other protestors. The coworkers
expressed anger and concern about Demma allowing nonem-
ployees to access the secured areas without authorization from
management. Polk, Radosevich, Palladino, and Stepto were
copied on the email chain.
On October 10, Demma emailed Palladino requesting a
meeting because he wanted management to stop his coworkers
from sending him what he felt were harassing emails. Palladino
responded on October 12, informing him that they could meet
in a couple of days. By email dated October 14, Demma asked
for the status of his request to meet with Palladino and Hayes to
discuss the daily email he had been receiving from coworkers.
Hayes suggested that they meet the following morning but
Demma replied that he had a prior appointment. After that
exchange, there was no further communication between the
parties about rescheduling the meeting.
E. October 15 meeting between Demma and management
When Demma returned to work on October 15, Palladino
approached him to say that management was ready to meet
with him. Demma asked for Tufino to attend the meeting as his
witness; and she was allowed to participate but told that she
could not speak. The meeting, held in the executive offices,
included: Demma, Tufino, Palladino, Hayes, and Polk. Hayes
began the meeting by asking Demma why he felt that his col-
leagues were harassing him. When Demma responded that he
felt the emails had a harassing tone, Hayes replied, “Just like
you have your opinion, they have theirs.” (Tr. 78.) Hayes then
asked Demma if he was the person who entered the security
code to access the executive offices with the group of protestors
on October 9. Demma answered that he “didn’t know.” She
again prompted him to remember if he used the door code to
access the executive suites, and Demma reiterated that he
“didn’t know.” After this exchange, Hayes informed him that
management had a videotape of him entering the code into the
keypad. She admonished him that his action constituted a seri-
ous security breach; and he was suspended until a more thor-
ough investigation of the incident could be conducted. The
meeting concluded and Palladino escorted Demma out of the
building. Tufino, who was not questioned by management in
the meeting, returned to work.
F. Investigation into October 9 Security Breach
Palladino had been in his office with Chef Millman on Octo-

gardless, I do find that this discrepancy is insignificant and not relevant
to the ultimate decision on the merits of the complaint.
ber 9, when a server, Mimi Holland, came into his office to tell
him that there were protestors in the secured area of the base-
ment. He ran to Scott’s office and saw a large group of about
20 people coming out of the executive suite. Palladino recog-
nized that about six of the protestors were employees of the
Burnham or the Atwood. After the incident, on October 10,
Palladino viewed the Respondent’s security footage, which
showed Demma entering the passcode into the keypad and
leading a group of about 20 protestors into the secured area. As
part of his investigation into the incident Palladino: (1) viewed
the security footage several times; (2) conducted the meeting
with Demma that occurred on October 15 to question him and
listen to his explanations; and (3) asked employees who worked
on October 9, to tell him what, if anything, they witnessed on
that day. Demma was also asked to submit a written statement
about his version of the October 9 events. After taking the
aforementioned steps, Palladino consulted with Chef Millman,
Polk, Scott, and Hayes about what he saw on the videotape; and
discussed with them their opinion on what, if any, action should
be taken against Demma. Due to her position as the human
resources director, Palladino consulted with Polk on about five
or six occasions regarding his investigation into Demma’s ac-
tion. Polk voiced her opinion about what she saw on the securi-
ty tape and made recommendations on how Palladino should
proceed. Since, as the general manager of the Atwood, Palladi-
no did not have authority over the Burnham’s staff, he did not
involve its general manager in the investigation or interview the
housekeeping or hotel staff. Palladino admitted, however, that
he discussed with Scott (and several other managers) the vide-
otape of the incident because she was the reason Demma and
the protestors entered the secured area on October 9.
G. October 22, the Respondent Terminates Demma
On October 21, Palladino asked Demma to meet with him
and Hayes the next day. Consequently, on October 22, Dem-
ma, Tufino, Palladino, and Hayes met in the executive offices.
Hayes began the meeting by informing Demma that he was
terminated because his act of entering the passcode into the
secured door and allowing the protestors, many of whom were
not the Respondent’s employees, to enter which was a “serious
security breach.” Demma objected and accused management of
singling him out for adverse action because of his union activi-
ty. In response, Hayes reiterated that he had committed a seri-
ous security breach. Demma was given a copy of the termina-
tion letter, a bag to place his personal belongings in, and escort-
ed out of the building.
By April 2016, the workers’ continued agitation resulted in
them voting in the Union to represent the Burnham’s house-
keeping staff.
III. DISCUSSION AND ANALYSIS
A. Legal Standards
Section 8(a)(1) of the Act provides that it is an unfair labor
practice for an employer to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7
of the Act. The rights guaranteed in Section 7 include the right
“to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.” See Bright-
on Retail, Inc., 354 NLRB 441, 441 (2009).
In Meyers Industries (Meyers I), 268 NLRB 493 (1984), and
in Meyers Industries (Meyers II), 281 NLRB 882 (1986), the
Board held that “concerted activities” protected by Section 7
are those “engaged in with or on the authority of other employ-
ees, and not solely by and on behalf of the employee himself.”
However, the activities of a single employee in enlisting the
support of fellow employees in mutual aid and protection is as
much concerted activity as is ordinary group activity. Individ-
ual action is concerted if it is engaged in with the object of
initiating or inducing group action. Whitaker Corp., 289 NLRB
933 (1988). A conversation can constitute concerted activity
when “engaged in with the object of initiating or inducing or
preparing for group action or [when] it [has] some relation to
group action in the interest of the employees.” Meyers II, supra,
281 NLRB at 887 (quoting Mushroom Transportation Co., 330
F.2d 683, 685 (3 Cir. 1964)). The object of inducing group
action, however, need not be expressed depending on the nature
of the conversation. Hoodview Vending Co., 359 NLRB 355,
358–359 (2012).
An employer violates Section 8(a)(1) of the Act if it disci-
plines or discharges an employee for engaging in activity that is
“concerted” within the meaning of Section 7 of the Act. If it is
determined that the activity is concerted, a violation of Section
8(a)(1) will be found if the employer knew of the concerted
nature of the employee’s activity, the concerted activity was
protected by the Act, and the adverse employment action was
motivated by the employee’s protected, concerted activity.
Relco Locomotives Corp., 358 NLRB 37 (2012) (citing Meyers
Industries, 268 NLRB 493, 497 (1984), remanded sub nom.
Prill v. NLRB 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474
U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd.
sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988)). Once the General Counsel es-
tablishes such an initial showing of discrimination, the employ-
er may present evidence, as an affirmative defense, showing it
would have taken the same action even in the absence of the
protected activity. The General Counsel may offer evidence
that the employer’s articulated reasons are pretext or false.
Relco, supra.
As with 8(a)(3) discrimination cases, the Board applies the
Wright Line6 analysis to 8(a) (1) concerted activity cases that
involve an employer’s motivation for taking an adverse em-
ployment action against employees. Hoodview Vending Co.,
supra; Saigon Gourmet Restaurant, Inc., 353 NLRB 1063, 1065
(2009). The burden is on the General Counsel to initially estab-
lish that a substantial or motivating factor in the employer’s
decision to take adverse employment action against an employ-
ee was the employee’s union or other protected activity. In
order to establish this initial showing of discrimination, the
evidence must prove: (1) the employee engaged in concerted
activities; (2) the concerted activities were protected by the Act;
(3) the employer knew of the concerted nature of the activities;

6 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert denied 455 U.S. 989 (1982).
and (4) the adverse action taken against the employee was mo-
tivated by the activity. Once the General Counsel has met its
initial showing that the protected conduct was a motivating or
substantial reason in employer’s decision to take the adverse
action, the employer has the burden of production by presenting
evidence the action would have occurred even absent the pro-
tected concerted activity. The General Counsel may offer proof
that the employer’s articulated reason is false or pretextual.
Hoodview Vending Co., supra 359 NLRB 355, at 359. Ulti-
mately, the General Counsel retains the ultimate burden of
proving discrimination. Wright Line, id. However, where “the
evidence establishes that the reasons given for the Respond-
ent’s action are pretextual—that is, either false or not in fact
relied upon—the Respondent fails by definition to show that it
would have taken the same action for those reasons, absent the
protected conduct, and thus there is no need to perform the
second part of the Wright Line analysis.” Golden State Foods
Corp., 340 NLRB 382, 385 (2003) (citing Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982)). The Wright Line analysis is not applicable when there is
no dispute that the employer took action against the employee
because the employee engaged in protected concerted activity.
Phoenix Transit System, 337 NLRB 510, 510 (2002), enfd. 63
Fed.Appx. 524 (D.C. Cir. 2003).
While a case involving adverse action against an employee
who engaged in protected concerted activity is properly ana-
lyzed under a Wright Line analysis, if the evidence shows that
the employee engaged in an outburst of an egregious nature, the
employee may lose protection of the Act. In Atlantic Steel7 the
Board established several factors that must be considered in
determining whether an employee who is engaged in concerted
protected activity loses protection of the Act because of oppro-
brious conduct. The factors to consider are: (1) the place of the
discussion; (2) the subject matter of the discussion; (3) the na-
ture of the employee’s outburst; and (4) whether the outburst
was, in any way, provoked by an employer’s unfair labor prac-
tice. Atlantic Steel at 816. Therefore, a balancing of these fac-
tors is required to render a decision on the ultimate question.
B. Wright Line Versus Atlantic Steel Analysis
The General Counsel argues that the Atlantic Steel balancing
test is appropriate in this case because the reason for Demma’s
termination is part of the res gestae of his protected concerted
activity. The Respondent counters that the Atlantic Steel bal-
ancing test applies only to cases involving verbal outbursts or
offensive language. Moreover, the Respondent argues that the
factors in the Atlantic Steel balancing test are “incompatible
with non-verbal conduct; and there are no Board cases that
apply the balancing test to “a security breach or any other non-
verbal misconduct.” (R. Br. 17.)
I agree with the Respondent and reject the General Counsel’s
argument because I cannot find any Board law or case law to
support the proposition that the Atlantic Steel balancing test
applies to nonverbal conduct. Likewise, the General Counsel
failed to present case law to support its argument on this point.
Consequently, I find that this case is properly analyzed under

7 245 NLRB 814 (1979).
KHRG EMPLOYER, LLC D/B/A HOTEL BURNHAM & ATWOOD CAFÉ 7
Wright Line.
C. October 22, Respondent Terminates Demma
The General Counsel alleges that the Respondent violated
Section 8(a)(1) of the Act by terminating Demma for engaging
in protected concerted activity effective October 22. The Gen-
eral Counsel contends that factors pointing to evidence of the
Respondent’s unlawful termination of Demma are: (1) man-
agement’s “sham” investigation into the charges against Dem-
ma; (2) the close timing between Demma’s protected concerted
activity and his termination; (3) instances of other employees
engaged in similar conduct without being subjected to adverse
employment actions; and (4) failure of the Respondent to take
action against anyone else involved in the incident other than
Demma.
The Respondent denies that Demma’s union activity was a
factor in its decision to terminate him. Further, the Respondent
insists that the union’s campaign against the Respondent was
not protected activity; therefore, Demma’s action of delivering
the petition was likewise not protected under the Act. Regard-
less, the Respondent insists that Demma was discharged for
breaching security, and not because he submitted a petition to
Scott complaining about working conditions.
Based on the evidence, I find that the General Counsel has
failed to establish that the termination of Demma violated Sec-
tion 8(a) (1) for the reasons discussed below.
A Wright Line analysis is appropriate in this case because the
Respondent’s motive is at issue. Despite the Respondent’s
argument, the evidence is clear that Demma engaged in pro-
tected concerted activity when he, along with a group of protes-
tors, delivered a petition to Scott detailing their issues with
certain working conditions. The Board has held that employees
who submit petitions to employers are engaging in protected
concerted activity if the petition concerns unfair treatment or
issues affecting their terms and conditions of employment.
Texas Dental Assn., 354 NLRB 398 (2009), reconsideration
denied 354 NLRB 957 (2009) (employees anonymously
emailed petition is protected concerted activity because the
petition detailed concerns about management and unfair treat-
ment); Crowne Plaza, 357 NLRB 1097 (2011) (petition con-
cerning working conditions protected concerted activity); Lib-
erty National Products, Inc., 314 NLRB 630 (1994) (petition
complaining about delay in receiving paychecks is protected
concerted activity); Clean Power, Inc., 316 NLRB 496 (1995)
(petition concerning complaints of employees being over-
worked is protected concerted activity). The evidence is undis-
puted that Demma lead a group of workers into management’s
office to deliver a petition concerning the working conditions of
housekeeping staff. Likewise, it is undisputed that the Re-
spondent was aware of this activity because Demma delivered
the petition to Scott, the hotel’s general manager. Also, it is
clear that the termination constitutes an adverse employment
action.
Therefore, the next factor to consider is whether Demma’s
protected activity was a substantial or motivating factor in the
Respondent’s decision to terminate his employment. Upon
such a showing, the Respondent then must present evidence
that it would have discharged Demma even absent the protected
concerted activity. See Correctional Medical Services, 356
NLRB 277, 278 (2010). I find, however, that the General
Counsel has failed to prove this final prong of its initial burden.
In its brief, the General Counsel argues that discriminatory
animus can be inferred from: (1) the “sham” investigation con-
ducted by Palladino; (2) the timing of Demma’s termination;
(3) Respondent’s failure to discipline other employees for simi-
lar security violations; and (4) Respondent’s failure to disci-
pline other employees who followed Demma into Scott’s of-
fice. I, however, do not find the General Counsel’s argument
persuasive.
The evidence established that within a day of Demma’s secu-
rity breach, Palladino reviewed the videotape of his actions.
Over the next several days, Palladino continued the investiga-
tion into Demma’s action by consulting with other managers
about what appeared on the videotape, requesting statements
from employees who witnessed the incident on October 9, ask-
ing Demma for a statement detailing his version of the incident,
convening a meeting between Demma and management to
discuss the incident, and consulting with the Respondent’s hu-
man resources unit. The General Counsel makes the argument
that because Palladino discovered by October 10, that Demma
was the person who entered the passcode to open the door into
the secured area “the investigation should have stopped
there.”(GC Br. 19.) I cannot understand the logic of this argu-
ment. It appears that the General Counsel is arguing that the
Respondent should be penalized for taking the time to conduct
a detailed investigation. The evidence makes clear to me that
the Respondent did conduct a thorough investigation which
weighs against a finding of discriminatory animus.
Moreover, unlike the General Counsel, I do not find it suspi-
cious that Palladino did not question any housekeeping em-
ployees about the events on October 9. Palladino had the best
and most objective evidence, the videotape, of whether Demma
was the person who entered the passcode that allowed the pro-
testors to enter into the secured area. Consequently, his interest
was in what, if any, disruption other employees saw Demma
and the demonstrators commit. I also find plausible and credi-
ble Palladino’s testimony that as the general manager of the
restaurant and with no managerial authority over the house-
keeping staff, his investigation did not include them unless a
member of the housekeeping staff had been in the employee
break room and witnessed the incident of October 9.
I also find that the timing of Demma’s termination does not
support a finding of discriminatory animus. The General
Counsel argues that the “close timing between delivering the
petition and Respondent’s series of adverse actions support
Respondent’s discriminatory motive.” It is undisputed that
Demma accessed the secured door and delivered the petition to
Scott about working conditions within minutes of each other.
Consequently, one cannot separate the timing of Demma’s
termination from his submission of the petition or accessing the
keypad to enter the secured area with nonemployees. Demma
was terminated quickly because it did not take long for an in-
vestigation to reveal that he was the person who entered the
passcode into the secured door and led nonemployees into the
private area containing the managerial suite. The additional
time taken to investigate the incident was used to determine
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
whether anyone in the group acted in a disruptive manner once
they accessed the secured areas.
The General also argues that because other employees have
participated in the same conduct as Demma without punish-
ment “significantly underscores Respondent’s discriminatory
motive.” (GC Br. 20.) The General Counsel pointed to several
instances when nonemployees were given access, by manage-
ment, to the security codes or allowed to enter secured areas
unaccompanied by employees. Demma also testified that he
witnessed various vendors enter the code into the secured
doors’ keypads. I find, however, that these instances differ in
key respects. Palladino admitted that certain vendors were
given the keypad codes because their deliveries occurred early
in the morning before any employees had arrived for work.
The evidence was undisputed that the Respondent was able to
trust these nonemployees with the door codes because: (1) they
had contracts with the vendors; (2) usually the same delivery
people made the deliveries; and (3) the delivery people were
videotaped while in the secured areas. Consequently, the Re-
spondent’s vendors (and by extension their staff) could easily
be held accountable for any misconduct committed by the ven-
dors’ employees. However, the protestors that Demma allowed
access into the “employee only” area were mostly unknown to
the Respondent’s managers, nonmanagerial staff, and several
protestors were unknown even to Demma. (Tr. 123–124)
Likewise, even though there were occasions when employees’
family members would be allowed to wait for them unattended
or escort themselves to secured areas to meet employees, the
family members were known to management and other em-
ployees. Again, management would have been able to easily
hold these persons to account if they committed an unsafe act
or other misconduct while in the employees’ only area of the
building.
Lastly, the General Counsel argues that because no discipli-
nary action was taken against anyone other than Demma, this
should weigh in favor of a finding of discriminatory animus.
However, I find that the General Counsel’s final argument is
also flawed. The General Counsel contends,
While Respondent could have taken action against any of the
other hotel employees present, it failed to do so. These em-
ployees’ failure to report or stop the delegation was just as
much of a security breach as Demma using his employee
code.
(GC Br. 20.) The General Counsel’s argument fails to recognize
that an employee, Mimi Holland, had reported Demma and the
other protestors to Palladino who ran to Scott’s office to investi-
gate. It is also undisputed that the security guard initially stopped
Demma and the group from going to Scott’s office but allowed
them to proceed when Demma misrepresented that everyone
worked for the Respondent. It is also significant to note that even
though Tufino, Arceo, Vasques, Arrenos, and Pariente were en-
gaged in the same protected concerted activity as Demma and
accompanied him on October 9, to Scott’s office, they were not
terminated. This fact also weighs against a finding that Demma
was terminated because of his protected concerted activity.
Accordingly, I find that based on the evidence, the Respond-
ent’s discharge of Demma does not violate Section 8(a) (1) of
the Act. I recommend, therefore, that paragraph V of the com-
plaint be dismissed.8
Dated, Washington, D.C. January 27, 2017

8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.