NLRB Advice Memoranda, American Electric Power, National Labor Relations Board, (Apr 25, 2023)

The Region submitted this case for advice on whether the Charged Party, a utility company, violated the Act by retaliating against former employees of a contractor that performs work for the company in Indiana because the employees concertedly resigned from their employment to temporarily perform more lucrative work elsewhere. We conclude the Charged Party's conduct was lawful under extant law, and there is no related meritorious allegation rendering this case an appropriate vehicle for challenging extant law. Accordingly, the Region should dismiss the charge, absent withdrawal.

Consistent with industry norms, the Charged Party occasionally releases its own and its contractors’ employees to perform urgent work elsewhere on a temporary basis in connection with natural disasters. On September 26, 2022, the alleged discriminatees learned during a meeting with their employer—the Charged Party's contractor—that half of their employer's crews would be released to perform hurricane recovery work in Florida. But these employees were not on the crews permitted to go. This upset the employees, who wished also to go to Florida because of the lucrative nature of the recovery work. At least some of the employees discussed the matter with each other before, on the same day they learned of the decision not to release them, the employees resigned from their employer, leaving behind work on behalf of the Charged Party to pursue recovery work in Florida.

While the employees were on their way to Florida, they received an ultimatum from the Charged Party, conveyed to them by their then-former employer. If the employees turned around and reported to their former employer back in Indiana, they could resume their prior work without repercussion. Otherwise, the Charged Party would ban them from performing work on its property for six months. After discussing the matter amongst each other, the employees pressed on to Florida and performed recovery work there. Upon returning to Indiana, the employees learned that the Charged Party had carried out its threat and banned them from performing work on its property for six months, a decision that significantly affected the employees’ employment opportunities.

It is undisputed that the Charged Party banned the employees in retaliation for the employees’ concerted abandonment of their jobs. Under extant Board law, this retaliation did not violate the Act. In Crescent Wharf & Warehouse Co., 104 NLRB 860, 861-62 (1953), the Board held that the voluntary resignation, by letter, of six employees dissatisfied with their employer's refusal to increase their wages was unprotected. In so holding, the Board relied on factual findings that the resignation letter “was not preceded by a labor dispute” and that there was “no basis for inferring that the letter was a device selected by the … employees to enforce demands upon [the employer].” Id. at 862. In that regard, the Board stated that there was no evidence to support a finding that the employees made a demand for wage increases prior to resigning. See id. at 862 n.5.

Crescent Wharf controls this case. Like in Crescent Wharf, there is no evidence that here the employees’ resignation was “a device … to enforce demands upon” their employer, or, for that matter, the Charged Party. Id. at 862. Although, unlike in Crescent Wharf, here the employer may have been on notice of the employees’ displeasure with its decision before the employees resigned, this distinction is immaterial because, like in Crescent Wharf, there is no evidence here that the employees made any demand prior to resigning. Accordingly, the employees’ resignation was unprotected and the Charged Party's retaliation against them did not violate the Act.

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This email closes this case in Advice. Please let us know if you have any questions or concerns about the above.

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