Oncor Electric Delivery Compan v. National Labor Relations Board, No. 16-1278 (D.C. Cir. 2018)Annotate this Case
In 2008 Oncor began installing smart meters that can report customers’ electricity usage remotely, eliminating the need for personal inspection and the associated labor costs. In 2012 a Texas Senate committee investigated whether smart meters have harmful effects on public health.” Reed, an Oncor “trouble man” who completed ad hoc repair jobs and responded to power outages, who was also the union's business manager and financial secretary, volunteered to testify. Reed signed the witness list as representing the union. During his brief testimony, Reed said he represented the local union and spoke of the meters burning, testified to receiving repair orders or damaged boxes after the meters burned, and spoke of experiences with disgruntled customers. Oncor investigated, concluded that Reed’s testimony was false, and terminated his employment. An ALJ found a violation of the National Labor Relations Act by interfering with Reed’s protected union activities. The NLRB affirmed. The D.C. Circuit remanded, directing the NLRB to clarify its decision under a two-prong test for assessing whether employees’ third-party appeals constitute protected concerted activity or amount to such detrimental disloyalty as to permit termination for cause. Even disparaging statements can enjoy protection where the communication indicates it is related to an ongoing dispute between the employees and the employers and the communication is not so disloyal, reckless or maliciously untrue as to lose protection.