A recent D.C. Circuit decision, Oncor Electric Delivery Company LLC v. NLRB, shrinks the protections the National Labor Relations Act (NLRA) provides to workers by misreading a Supreme Court opinion regarding statements by workers that disparage their employer’s product. The decision allowed Oncor to fire the lead negotiator for its technician’s union for his testimony before the state legislature. The D.C. Circuit panel relied on a 1953 Supreme Court opinion, NLRB v. Local Union No. 1229, Int’l. Bhd. of Electric Workers, a case generally referred to as Jefferson Standard, the name of the employer in that case. And while Jefferson Standard was a poorly reasoned opinion that has not aged well, nothing in Jefferson Standard required the D.C. Circuit to take such a narrow view of the protections the NLRA provides to workers.

Jefferson Standard arose out of efforts by technicians at a local television station in Charlotte, North Carolina to negotiate a collective bargaining agreement. The technicians’ informational picketing seemed to have little effect on the company, so some of the technicians tried a new strategy. They printed up thousands of leaflets criticizing the company for only presenting programs that were filmed elsewhere rather than broadcasting any local programming. The leaflets were signed “WBT Technicians,” but they made no mention of the contract dispute. The company fired the workers who were responsible for the leaflet, and the case made its way to the Supreme Court. The Court majority held that the employer was justified in firing the workers because “[t]here is no more elemental cause for discharge of an employee than disloyalty to his employer,” and the Court further asserted that the NLRA seeks to strengthen “that cooperation, continuity of service and cordial contractual relation between employer and employee that is born of loyalty to their common enterprise.” Needless to say, the Court has never held that employers owe any duty of loyalty to their employees.

The dissent in Jefferson Standard pointed out the incoherence of the majority’s reasoning. Justice Frankfurter explained that “[m]any of the legally recognized tactics and weapons of labor would readily be condemned for ‘disloyalty’ were they employed between man and man in friendly personal relations.”  The dissent further criticized the majority for failing to set forth any test for when workers lose the Act’s protection, leaving future judges and Board Members to infer a rule from the specific facts ofthat case.  Key among those facts was the majority’s observation that the handbill at issue “omitted all reference” to the ongoing contract fight. The majority asserted that “[a] disclosure of that motive might have lost more public support for the employees than it would have gained, for it would have given the handbill more the character of coercion than of collective bargaining.” Finally, the Court left open the question of whether the same disparagement of product would have justified the discharges if they had been made “in the context of a conventional appeal for support of the union in the labor dispute.”

The Oncor case did not involve statements made to the general public, but rather testimony before a state legislature. Bobby Reed was a technician for Oncor, an electrical utility company. Reed was also the chief spokesperson for Local 69 of the International Brotherhood of Electrical Workers in contract negotiations with the company. At the first negotiating session for a new agreement, Reed told the company that if the parties didn’t reach a deal, he planned to testify before the state Senate the next day regarding “smart” meters. The smart meters allowed the company to monitor customers’ electrical usage remotely, eliminating the need for meter reading. Introduction of smart meters had led to layoffs of technicians, and the technicians also had safety concerns about the smart meters.

When Reed signed in to testify before the state Senate, he identified himself as representing IBEW Local 69, and in his remarks he stated that he was a union representative. In the two minutes he was allotted for his testimony, Reed told the committee that since the smart meters were installed, more meters and meter bases had been burning up. Oncor fired Reed for giving false testimony.

The test the D.C. Circuit applied was the same one that the Board has used for when workers’ disparaging statements about their employer to third parties lose the protection of the Act. A statement remains protected as long as it (1) indicates it is related to an ongoing dispute between the employees and the employer; and (2) is not so disloyal, reckless or maliciously untrue as to lose the Act’s protection. In a previous decision, the D.C. Circuit had already found that Reed’s testimony, while not completely accurate, was not maliciously untrue. There had been numerous incidents of the smart meters and their meter bases burning, but the testimony was inaccurate because the burning was caused by faulty connections rather than the smart meters themselves.

The D.C. Circuit panel found that Reed lost the Act’s protection because when he testified before the Senate committee, he didn’t tell them that the union was currently in contract negotiations with Oncor, and thus he failed to adequately relate his testimony to an ongoing labor dispute. Reed did tell the Senators he was speaking on behalf of his union. It’s imposing an absurd level of formalism to hold, as the D.C. Circuit apparently did, that whether or not his employer could fire him for his testimony turns on his failure to include the phrase “and we are currently in contract negotiations” in his testimony. What possible purpose would that have served? Recall that in Jefferson Standard, the leaflets were broadly distributed to the general public. And the Supreme Court apparently thought that the leaflet’s message might have lost some of its persuasive power if the technicians had disclosed that their ulterior motive was to gain leverage in their contract fight. But Reed was lobbying a state legislature. As the NLRB explained in its decision, legislators expect that witnesses who take the trouble to show up at committee hearings often have particular interests that they seek to advance. There was no evidence that the Senate committee credited Reed as a disinterested expert.

I recently wrote about how, in most states, any protections for free speech do not apply to actions taken by private sector employers. At the very least, states should protect workers against retaliation for testimony given to government fact-finders. But, in the meantime, the NLRA is often the only applicable law. Bobby Reed, who had once suffered second-degree burns on the job, found 27 instances where technicians had reported that smart meters had burned, potentially creating hazards for workers. The NLRA right to engage in concerted activity for mutual aid or protection should include the right to share that information with state legislators. When workers give testimony in good faith about their employer, they shouldn’t have to spell out all of their motives in order to enjoy the Act’s protections.