NLRB Advice Memoranda, VOS Electric Inc., National Labor Relations Board, (Nov 6, 2023)

The Region submitted this case for advice, pursuant to Memorandum GC 23-08, Non-Compete Agreements that Violate the National Labor Relations Act, dated May 30, 2023, on whether the Employer violated the Act when it sued the Charging Party, a former employee, to enforce a contractual training-repayment provision. We conclude that the charge should be dismissed, absent withdrawal.

The Charging Party was employed by the Employer, a provider of electrical services, from ​     ​ to ​     ​ 2022. The Charging Party participated in the Employer's four-year apprenticeship training program, which the Employer asserts is voluntary and is paid for by the Employer. Each year, the Charging Party signed a contract stating ​     ​ was required to reimburse the Employer for training expenses should ​     ​ fail to complete the training program or not remain employed for a designated time period. [1] The Charging Party quit before the designated time period and did not reimburse the Employer. In ​     ​ 2023, the Employer sued the Charging Party for, inter alia, breach of contract, seeking $23,500.

In Berry Green Management, Inc., Case 07-CA-296276, Significant Advice Memorandum dated Apr. 26, 2023, we instructed the Region to urge the Board to find that maintaining an overly broad non-compete provision violates the Act absent special circumstances. Such provisions restrict employees from accessing alternate employment and thus have a reasonable tendency to chill employees in the exercise of Section 7 rights generally, and they specifically chill concertedly threatening to resign to improve terms of employment, carrying out such threats, soliciting coworkers to go work for a local competitor as part of a broader course of protected concerted activity, concertedly resigning to secure improved working conditions, concertedly seeking or accepting employment with a local competitor to obtain better working conditions, and being paid to organize a given employer's employees. See also Memorandum GC 23-08, at 3-4.

Here, we need not decide whether the Employer's enforcement of the training-repayment provision violates the Act under the above principles because there is neither a violation of extant law nor a related meritorious allegation. ​     ​ see also American Electric Power, Case 25-CA-306445, Advice Closing Email dated Apr. 25, 2023. Accordingly, the Region should dismiss the charge, absent withdrawal.

This email closes this case in Advice as of today.

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