NLRB Advice Memoranda, Vibe Consulting, National Labor Relations Board, (Feb 7, 2024)

The Region submitted this case for advice on whether the Employer constructively discharged two employees for engaging in protected and/or inherently concerted activity. Even assuming the two employees at issue here were engaged in inherently concerted or otherwise protected activity, we conclude that there is insufficient evidence to find either employee was constructively discharged. In addition, the evidence is insufficient to establish that the Employer harbored animus towards the protected activities of either employee. The Region should dismiss the charges, absent withdrawal.

The Employer operates a cannabis dispensary in the Detroit, Michigan metropolitan area. The charging parties were ​     ​

In ​     ​ 2022, ​     ​ began engaging in conduct alleged to be sexual harassment. The Charging Parties discussed this alleged harassment with one another at a work event on ​     ​ 2022, but did not take further action at that time. In ​     ​ 2022, Charging Party A told ​     ​ that ​     ​ behavior was inappropriate and unwelcome, but did not mention Charging Party B. Nor did Charging Party B discuss this with ​     ​ or otherwise alert the Employer that ​     ​ was having any kind of problem with ​     ​ at that time or that ​     ​ had spoken wi Charging Party A.

In ​     ​ 2022, the Employer removed Charging Party B from the work schedule without explanation, and on ​     ​ 2023, [1] the Employer disciplined Charging Party B for missing work. ​     ​ quit that same day. On ​     ​, Charging Party B complained to the Employer about the harassing ​     ​ behavior but did not receive a meaningful response.

On ​     ​ Charging Party A complained to a manager about the harassment and asked not to work on the same shift as ​     ​. The Employer accommodated that request nest for a few weeks. On ​     ​, after noticing ​     ​ was scheduled to work with ​     ​ the following day, Charging Party A notified the Employer. On ​     ​, the Employer assigned Charging Party A to complete ​     ​ duties in addition to ​     ​ duties but did not change ​     ​ pay. [2] ​     ​ Charging Party A continued to perform this work without further incident until ​     ​ That day, Charging Party A and ​     ​ got into an altercation about a ​     ​ and Charging Party A walked out of the store. ​     ​ was absent ​     ​ due to ​     ​ The Employer pressured ​     ​ to return to work, at which point ​     ​ told the Employer to take ​     ​ off the schedule because ​     ​ did not want to work for a place where “​     ​ don't respect the employees or the work they put in for them.”

Even assuming that Charging Parties A and B engaged in either inherently or traditionally concerted activity, we conclude that the evidence is insufficient to find that either was constructively discharged. Nor is there evidence that the Employer exhibited animus toward either Charging Party A or B. A constructive discharge is a quit or resignation that the Board treats as a discharge because of the circumstances in which it occurs. [3] See Intercon I (Zercom), 333 NLRB 223, 223 (2001); see also Crystal Princeton Ref. Co., 222 NLRB 1068, 1069 (1976). For a quit to be a constructive discharge, “[f]irst, the burdens imposed upon the employee must cause, and be intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign. Second, it must be shown that those burdens were imposed because of the employee's union activities.” Crystal Princeton, 222 NLRB at 1069. The Board uses the Wright Line test to analyze the second element. See Davis Elec. Wallingford Corp., 318 NLRB 375, 376 (1995).

First, there is insufficient evidence showing the Employer imposed burdens on Charging Party B sufficient to cause or intend to cause a change in working conditions so difficult or unpleasant as to compel ​     ​ to leave. Rather, Charging Party B did not complain to the Employer about the harassment until ​     ​ after ​     ​ had already quit. Although Charging Party B contends that the Employer took ​     ​ off the schedule once in ​     ​ 2022 and issued ​     ​ discipline in ​     ​ 2023 for missing work, ​     ​ had not engaged in any known protected activity that could have prompted these measures; nor do they rise to the level of conduct sufficient to establish a constructive discharge Rather, Charging Party B's known protected activity post-dated those Employer actions. [4] Moreover, the Employer had no knowledge of any protected activity Charging Party B had engaged in, nor had exhibited any animus toward such activity — a separate and independent reason for finding no violation here.

Second, we conclude that there is insufficient evidence that the Employer imposed onerous burdens on Charging Party A or changed ​     ​ working conditions significantly enough to satisfy the first element of the constructive discharge analysis. Although the Employer reassigned Charging Party A to complete ​     ​ tasks, there is no evidence the change was “so difficult or unpleasant” as to force ​     ​ to quit, nor that the Employer intended to do so. An employer may act with intent to cause an employee to quit by increasing their job duties in a manner that it “reasonably should have known” would cause the employee to quit. See, e.g., Yellow Enter. Sys., Inc., 342 NLRB 804, 807 (2004) (constructively discharged employee was placed on the night shift after he told his supervisor that his childcare obligations meant he would have to quit if he were put on the night shift). To the contrary, here, Charging Party A acknowledged ​     ​ had volunteered for such ditties in the past and continued to perform them for almost a month before quitting. [5] There is no evidence Charging Party A informed the Employer that ​     ​ did not wish to complete ​     ​ tasks. Moreover, the change in duties from ​     ​ to ​     ​ and ​     ​ was not so objectively difficult or unpleasant as to force an employee to quit. In addition, the Employer did not force Charging Party A to continue working the same shift as ​     ​ claimed had harassed ​     ​ After Charging Party A reported ​     ​ to the Employer, the Employer began scheduling ​     ​ to different shifts and reprimanded ​     ​. Although the Employer subsequently scheduled Charging Party A to, again, work on the same shift as ​     ​ about whom ​     ​ had complained, it changed ​     ​ job duties and ​     ​ had no further problematic interactions with ​     ​. See, e.g., Xcel Protective Servs., Inc., 371 NLRB No. 134, slip op. at 1 (2022) (no constructive discharge where employer kept employee on same shift as supervisor who threatened him, noting that employer investigated and reprimanded supervisor). Charging Party A continued working without incident for another month, walked off the job after an altercation with ​     ​ about a ​     ​, and subsequently informed the Employer ​     ​ would not be returning to work following a dispute over Charging Party A's absences ​     ​ Accordingly, there is insufficient evidence to establish either a constructive discharge or that the Employer harbored any animus towards Charging Party A for raising concerns about ​     ​. Rather, the Employer did the opposite; it reassigned Charging Party A for a perio o time and investigated and reprimanded ​     ​.

In sum, the Region should dismiss the charges, absent withdrawal. This email closes this case in Advice. Please let us know if you have any questions or concerns.

​     ​ sent on behalf of ​     ​ Division of Advice