Oncor Electric Delivery Company LLC v. National Labor Relations Board

The United States Court of Appeals for the District of Columbia Circuit vacated an order by the National Labor Relations Board finding an unfair labor practice. The court held that an employee's disparaging testimony about employer products at a legislative hearing was not protected speech because it failed to connect the remarks to an ongoing labor dispute.

Background

Oncor Electric Delivery Company LLC terminated employee Bobby Reed after he testified at a Texas Senate hearing that smart meters were causing damage to homes. Reed, who was also a union spokesperson, had previously testified that work orders were increasing due to burning meter bases. The National Labor Relations Board found the termination unlawful, ruling that Reed’s testimony was protected concerted activity under Section Seven of the National Labor Relations Act. The Board ordered reinstatement and back pay. This is the second time the Court of Appeals has reviewed the case, having previously remanded the matter for the Board to address whether the testimony disclosed a connection to an ongoing labor dispute.

The court’s reasoning

The Court applied the Jefferson Standard test, which requires that disparaging communications to third parties must either disclose a connection to an ongoing labor dispute or not be so disloyal, reckless, or maliciously untrue as to lose protection. The Court found that Reed’s testimony did not mention the stalled collective bargaining negotiations or connect his criticisms of the smart meters to an ongoing labor dispute. The Court rejected the Board’s argument that the legislative context or Reed’s union identification implied a labor dispute. The Court held that the mere coexistence of a labor dispute and product disparagement is insufficient, and that references to working conditions alone do not establish the necessary link to an appeal for support in a labor dispute.

We hold that Reed’s disparaging statements to the senate committee are not protected speech under the NLRA because he did not mention, much less draw a clear connection to, an ongoing labor dispute.

Oncor Elec. Delivery Co. LLC v. NLRB, No. 24-1277 (D.C. Cir. Apr. 28, 2026)

What it means going forward

Employers may lawfully discharge employees for making disparaging public statements about their products or services if the statements do not explicitly link the criticism to an ongoing labor dispute or collective bargaining effort. The decision reinforces that the burden is on the employee to disclose the labor context of their speech to claim protection under the National Labor Relations Act.