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…

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