Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—NLRB: Employer constructively discharged employees by reducing their work hours, (Jun 17, 2026)

By Ronald Miller, J.D.

The burden imposed on four employees as a result of the reductions to their hours of work caused, and were intended to cause, a change in those employees’ working conditions so difficult or unpleasant as to force them to resign.

A three-member panel of the NLRB affirmed an administrative law judge’s finding that an employer violated Section 8(a)(3) and (1) of the Act by constructively discharging four employees through its unlawful reduction in their work hours. By reducing the employees’ hours of work, the employer created an untenable financial situation for the employees who were forced to choose between hoping they might get their regular hours or seeking other employment. Further, the Board rejected the employer’s argument that a non-Board settlement agreement between itself and the union rendered challenges to the ballots of four employees moot and required dismissal of the union’s representation petition. Consequently, the Board affirmed the ALJ’s decision to overrule those ballot challenges (M.J. Melo Painting Ltd, 374 N.L.R.B. No. 131 (June 10, 2026)).

The employer is a residential and commercial painting company. During an organizing campaign among its employees by a union, it allegedly committed multiple violations of the NLRA, including by threatening to reduce employees’ hours and then reducing the hours of eight employees and ceasing assigning work to five of them.

Traditional constructive discharge standard. To establish a constructive discharge pursuant to the Board’s traditional constructive discharge theory, the General Counsel must prove the following two elements: “First, the burdens imposed on the employee must cause, and be intended to cause, a change in [the employee’s] working conditions so difficult or unpleasant as to force [the employee] to resign. Second, it must be shown that those burdens were imposed because of the employee’s union activities.”

Constructive discharges. The ALJ did not cite or apply the Board’s traditional constructive discharge standard. Instead, he simply concluded that the employer constructively discharged the four employees in violation of Section 8(a)(3) and (1) by reducing their hours of work, which he found “creat[ed] an untenable financial situation for employees who were forced to choose between hoping they might get their regular hours or seeking other employment.”

The employer argued that the reductions in hours were not onerous enough to force the employees to quit. However, the employer failed to except to the ALJ’s findings that under Wright Line, it violated Section 8(a)(3) and (1) by reducing the hours of work of the employees in retaliation for their union activities. The Board adopted the ALJ’s findings of those violations in the absence of exceptions.

Therefore, the General Counsel necessarily satisfied the second element of the Board’s traditional constructive discharge standard with regard to the constructive discharge allegations concerning the four employees—i.e., she has established that the employer reduced those employees’ hours of work because of their union activities.

As a result, the only question before the Board on exceptions was whether the General Counsel had satisfied the first element of the Board’s traditional constructive discharge standard.

Reduction in work hours. Here, the Board determined that the General Counsel showed that the burden imposed on the four employees as a result of the reductions to their hours of work caused, and were intended to cause, a change in those employees’ working conditions so difficult or unpleasant as to force them to resign.

The employer clearly should have foreseen that a 45 percent reduction in work hours would have prompted an employee to seek work elsewhere. Consequently, the General Counsel showed that the reduction to the employee’s hours of work in June in retaliation for his union activity caused, and was intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign. Accordingly, the Board found that the employer unlawfully constructively discharged the employee at the end of June.

First employee. As to the first employee’s decision to stop working for the employer around the end of September, the employer stopped assigning him more than 40 hours during the final three pay periods that he worked. Because the employee told a supervisor that he would return to work for the employer only if he was assigned full-time hours plus overtime, the employer reasonably should have foreseen that ceasing to assign him more than 40 hours per pay period would cause him to quit.

Second employee. A second employee testified that prior to early June, he always worked at least 40 hours per week for the employer and could work up to 60 hours per week. After he had a conversation about the union with a supervisor in early June, the employer stopped assigning him overtime and assigned him only 2 or 3 days of work during some weeks. The employee testified that he found a new job because the employer reduced his hours and then stopped assigning him work.

The employer reduced the employee’s hours by approximately 22 percent in June and then did not assign him any work for almost the first two weeks of July. In these circumstances, the employer clearly should have foreseen that the employee would have had no choice but to seek work elsewhere.

Third employee. The third employee testified that prior to June, he worked as many as 60 to 80 hours per week, and never less than 40 hours per week, but that the employer began reducing his hours around late May or early June. Further, he testified that he did not receive more than 40 hours per week from July to September. The employer’s work records showed that it reduced the employee’s hours by approximately 25 percent from July to October. The employer reasonably should have foreseen that such a significant reduction to the employee’s hours of work and its failure to assign him more than 40 hours of work per week would cause him to quit.

Thus, the General Counsel established that by reducing the employee’s hours of work in retaliation for his union activity, the employer caused, and intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign.

Fourth employee. The fourth employee testified that until late May, he worked around 50 hours per week and always a minimum of 40 hours per week. Around the end of May or beginning of June, the employer began reducing his hours, and he was working only three or four days per week. The employer reasonably should have foreseen that its actions would cause the employee to quit.

Accordingly, the Board affirmed the ALJ’s conclusion that the employer violated Section 8(a)(3) and (1) by constructively discharging the four employees.

Challenged ballots. The ALJ overruled the challenges to the ballots of the four employees. Rather than except to the ALJ’s decision to overrule those challenges on the merits, the employer argued that, pursuant to a non-Board settlement agreement between itself and the union, the Board should find that the ballot challenges are now moot, and “should hereby order that all claims by the Union to organize, and any related claims, be withdrawn and dismissed with prejudice.”

The representation settlement agreement was not entered into evidence and was therefore not a part of the record in this proceeding. Rather, the employer simply attached the representation settlement agreement to its exceptions as an exhibit. The Board’s standard practice is to decline to consider documents attached to exceptions or briefs if those documents are not a part of the record, as “the Board considers only record evidence and arguments pertaining to that record evidence.” Accordingly, the Board declined to consider the representation settlement agreement in rendering its decision.

As a result, the Board rejected the employer’s argument that the ballot challenges were moot because that argument was based solely on the representation settlement agreement. The Board also denied the employer’s request to dismiss the union’s petition because that was not an issue properly raised on exceptions.

Accordingly, the Board affirmed the ALJ’s decision to overrule the challenges to the employees’ ballots and directed the regional director to open and count those challenged ballots and take appropriate action consistent with the Board’s order granting review of acting regional director’s decision on the challenges.

The slip opinion is 374 NLRB No. 131.

Attorneys: Lynda Tooker for General Counsel. Christopher R. Travis (Travis Law) for M.J. Melo Painting, Ltd. Jordan El-Hag for Local Union 1430, International Brotherhood of Electrical Workers.

Companies: M.J. Melo Painting, Ltd; Local Union 1430, International Brotherhood of Electrical Workers

Cases: Labor UnfairLaborPractices OrganizingElections Discharge Procedure AgencyNews GCNNews