Dive Brief:
- Texas-based utility Oncor Electric Delivery Co. did not violate the National Labor Relations Act when it fired a field technician for giving disparaging testimony about its new smart meters during a state senate committee hearing, the District of Columbia U.S. Circuit Court of Appeals held April 28.
- According to the ruling in Oncor Electric Delivery Co. LLC v. National Labor Relations Board, the technician responded to outages, including alleged customer reports that Oncor’s new digital (smart) metering devices were burning up. The new meters also raised union concerns — the devices led to layoffs because they monitored customer usage remotely and eliminated the need for employees to read them manually, court documents said.
- The technician was also the spokesperson for the local unit of the International Brotherhood of Electrical Workers during negotiations to extend a collective bargaining agreement. The first negotiation took place the day before the senate hearing, and the technician told Oncor that if it could not reach an agreement, he would testify about the smart meters at the hearing, according to the record.
Dive Insight:
The parties didn’t reach a deal, and the next day, the technician testified about how his work orders increasingly involved smart meters burning up, the court noted. He also related that one customer told him she never had a problem until the digital meters were installed and that he heard of similar problems in other locations.
Oncor fired the technician for violating a company policy against providing misleading or fraudulent information to public officials, according to the record.
The D.C. Circuit upheld the termination, ending a decade of litigation. Contrary to what the NLRB asserted, the NLRA did not protect the technician’s testimony, and Oncor did not commit an unfair labor practice when it fired him, the court ruled.
Oncor did not provide a comment.
Section 7 of the NLRA protects an employee’s right “to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection,” the D.C. Circuit pointed out. This includes making disparaging remarks against the employer to third parties to gain support in a labor dispute — but only if the employee discloses that the remarks are related to the dispute, the panel explained.
The D.C. Circuit agreed with the NLRB that the technician’s testimony fell within the category of Section 7 speech; however, under the long-held Jefferson Standard test, the testimony wasn’t protected, the panel held.
The test requires employees to clearly disclose if their statements are related to an ongoing labor dispute so the listener can accurately assess how much weight to give them, the court noted. Otherwise, if the disclosure isn’t made, under Section 10(c) of the NLRA, employees can be fired for making disparaging statements about their employer, according to the ruling.
Here, while the technician said he was a member of the union, he never mentioned anything about the contract negotiations, much less revealed anything “about his intent to pressure Oncor into concessions during [these] negotiations,” the D.C. Circuit emphasized.
Late last year, the U.S. Senate confirmed former NLRB attorney James Murphy and Scott Mayer, a former chief labor counsel at Boeing, as NLRB members, restoring a quorum to the board. The Senate also confirmed Crystal Carey as the board’s general counsel.
The appointments signal a shift toward a more business-friendly board, as indicated by the NLRB’s February announcement that it was issuing a final rule on joint employer status in line with the standard it adopted in 2020 during the first Trump administration.
