Requiring an Employee to Choose Between Working and Caring for His Children Supports a Finding of Constructive Discharge Under the National Labor Relations Act

Volume 3, Issue 14
September 30, 2004

In a case involving actions taken by an ambulance service during and after a successful organizing campaign by a division of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, the National Labor Relations Board ("NLRB") applied a constructive discharge theory to hold the ambulance service liable for the resignation of one of its emergency medical technicians ("EMTs").

At issue were a number or unfair labor practice violations, including the scheduling of EMT Brian Kendall, a union supporter. Kendall had worked only day shifts for nearly a year. However, after the initiation of the union organizing campaign, and beginning with the 3-week schedule commencing March 14, 1999, Kendall was assigned to work one 8-hour overnight shift each week. Even though Kendall informed management that he could not work nights due to his childcare responsibilities, he was subsequently scheduled to work an 8-hour overnight shift each week for another 3-week schedule. As a result, Kendall resigned his full-time position.

Upon review, the NLRB determined that the administrative law judge properly concluded that Kendall was constructively discharged utilizing the factors set forth in Crystal Princeton Refining Co., 222 N.L.R.B. 1068 (1976), which provides that a constructive discharge exists when: (1) the burdens imposed upon an employee must cause, and be intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign; and (2) those burdens were imposed because of the employee's union activities. While the ambulance service argued that the burdens imposed on Kendall were minor scheduling changes, the NLRB held, consistent with past decisions, that requiring an employee to choose between working and caring for his children is sufficiently burdensome to support a finding of constructive discharge. As such, the NLRB ordered that Kendall be reinstated with back pay.

This case serves to illustrate that the NLRB applies the theory of constructive discharge much as the courts do in Title VII and other fair employment actions. Thus, employers must consider the potential for such liability when making personnel changes affecting employees who have engaged in union and other protected concerted activities.

Yellow Enter. Sys., Inc. (Yellow Ambulance Serv.), 342 N.L.R.B. No. 77 (2004).

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