Oncor Electric Delivery Company LLC v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2025 Decided April 28, 2026
No. 24-1277
ONCOR ELECTRIC DELIVERY COMPANY LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL UNION NO. 69,
INTERVENOR
Consolidated with 24-1281
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Amber M. Rogers argued the cause for petitioner/cross-
respondent. With her on the briefs was David C. Lonergan.

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Barbara A. Sheehy, Attorney, National Labor Relations
Board, argued the cause for respondent/cross-petitioner. On the
brief were William B. Cowen, Acting General Counsel, Ruth E.
Burdick, Deputy Associate General Counsel, Meredith Jason,
Assistant General Counsel, Elizabeth A. Heaney, Supervisory
Attorney, and Kellie Isbell, Senior Attorney.
Hal K. Gillespie argued the cause and filed the brief for
intervenor in support of respondent.
Before: SRINIVASAN, Chief Judge, MILLETT and RAO,
Circuit Judges.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: This case is about the balance
between an employee’s right to speak out about matters
connected to an ongoing labor dispute and an employer’s right
to terminate employees who make disparaging public
comments. See NLRB v. Loc. Union No. 1229, Int’l Bhd. of
Elec. Workers, 346 U.S. 464, 471–73 (1953) (“Jefferson
Standard”). Oncor Electric Delivery Company LLC terminated
Bobby Reed after he gave disparaging testimony about Oncor’s
products at a legislative hearing. The National Labor Relations
Board found that Reed’s testimony was protected and that
Oncor committed unfair labor practices. Because the Board
misapplied the relevant standard and its conclusions are
unsupported by substantial evidence, we grant Oncor’s petition
for review and deny the Board’s cross-petition for
enforcement.
I.
This is Oncor’s second petition for review arising from
Reed’s termination, and we draw on the facts as recounted in

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our previous opinion. See Oncor Elec. Delivery Co. LLC v.
NLRB, 887 F.3d 488, 493–94, 496–97 (D.C. Cir. 2018)
(“Oncor I”). Oncor is a Texas electric utility company. In 2008,
Oncor began rolling out digital metering devices. The new
smart meters monitored customers’ electrical usage remotely,
eliminating the need for manual meter readings by utility
technicians. This led to layoffs, raising concerns among unions
representing utility workers. The smart meter rollout also
received pushback from customers. In response to concerns
about potential health impacts from the meters’ radio
frequencies, the Texas Senate Business and Commerce
Committee held a hearing in October 2012 to address smart
meters’ effects on health.
Among those who testified at the hearing was Oncor
employee Bobby Reed. Reed was a “trouble man,” a technician
who responds to power outages. He was also the chief
spokesperson for the International Brotherhood of Electrical
Workers, Local Union Number 69 (the “Union”) in
negotiations with Oncor to extend a collective bargaining
agreement. The first negotiating session took place the day
before the senate hearing. Reed told Oncor’s representatives
that if they could not make a deal, he would testify about smart
meters at the hearing.
Oncor and the Union did not reach a deal, and Reed
testified the next day. On the witness list, he stated he was
representing “Self; IBEW Local 69.” While other witnesses
identified as “for” or “against” smart meters, Reed signed up to
testify “on” smart meters. Reed began his two-minute
testimony by identifying himself as an Oncor trouble man and
union representative. He stated that after the rollout of smart
meters, he noticed his work orders “were beginning to be
increasingly of the meters burning up and burning up the meter
bases.” Reed described an interaction with one woman who

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came out of her house as Reed was working on her meter. Reed
testified that when he explained the meter base had “burnt up,”
she said she “never had a problem” until the new meter was
installed. When a legislator interrupted Reed to ask if the issue
was really the new meters and not old lines, Reed affirmed the
meters were the problem and that a union representative in
Houston had also observed similar issues. Reed concluded by
stating the meters were “causing damage to people’s homes.”
Oncor management learned of Reed’s testimony and
discharged him for violating a company policy against
providing misleading or fraudulent information to public
officials.
An administrative law judge (“ALJ”) found Reed’s
testimony protected under section 7 of the National Labor
Relations Act (“NLRA”), which protects employees’ right “to
engage in … concerted activities for the purpose of collective
bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
The ALJ concluded that Oncor violated NLRA sections 8(a)(1)
and (3). Section 8(a)(3) makes it an unfair labor practice to
“discriminat[e] in regard to hire or tenure of employment … to
encourage or discourage membership in any labor
organization.” Id. § 158(a)(3). A violation of section 8(a)(3) is
necessarily a violation of section 8(a)(1), which prohibits
interference with the rights guaranteed by section 7. Id.
§ 158(a)(1). The Board adopted the ALJ’s conclusion that
Oncor violated sections 8(a)(1) and (3) and ordered Oncor to
offer Reed reinstatement and to make him whole “for any loss
of earnings and other benefits” due to his termination. Oncor
Elec. Delivery Co., LLC, 364 NLRB 677, 682 (2016).
Oncor petitioned for review. We granted the petition in
part. We agreed with the Board that Reed’s testimony was “‘for
the purpose of collective bargaining or other mutual aid or

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protection,’ a fundamental prerequisite of protection under
[section] 7.” Oncor I, 887 F.3d at 494 (quoting 29 U.S.C.
§ 157). But we determined the Board failed to correctly apply
the Jefferson Standard test. Under that test, an employee may
be discharged for making a disparaging comment to a third
party if the communication (1) does not disclose that “it is
related to an ongoing dispute between the employees and the
employers” or (2) is “so disloyal, reckless or maliciously
untrue as to lose the [NLRA’s] protection.” DirecTV, Inc. v.
NLRB, 837 F.3d 25, 34 (D.C. Cir. 2016) (cleaned up); see
Jefferson Standard, 346 U.S. at 471–72, 476–78. We held
substantial evidence supported the Board’s finding that Reed’s
remarks were not “maliciously untrue” under the second prong.
Oncor I, 887 F.3d at 498–99. But because the Board failed to
address the first prong, we remanded “for further
consideration” of that issue.1 Id. at 493. On remand, a divided
three member panel of the Board found that Reed’s testimony
showed a connection to an ongoing labor dispute and
concluded that his termination was unlawful. See Oncor Elec.
Delivery Co., LLC, 373 NLRB No. 80, slip op. at 3–7 (July 26,
2024).
Oncor again petitioned for review, and the Board cross-
petitioned for enforcement. The Union intervened to defend the
Board’s decision. We have jurisdiction over the petitions under
29 U.S.C. § 160(e) and (f).
1 We also instructed the Board to clarify who bears the burden of
proof for whether a communication indicates it is related to an
ongoing labor dispute. Oncor I, 887 F.3d at 498. The Board
confirmed on remand that the burden is on the NLRB General
Counsel.

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II.
“Judicial review ensures that the Board stays within
statutory and constitutional limits.” Circus Circus Casinos,
Inc. v. NLRB, 961 F.3d 469, 475 (D.C. Cir. 2020). We must
vacate the Board’s decision if it is “arbitrary, capricious, or
grounded in legal error,” or if substantial evidence does not
support the Board’s findings of fact. Longmont United Hosp. v.
NLRB, 70 F.4th 573, 578 (D.C. Cir. 2023) (cleaned up). It is
legal error for the Board to misapply judicial precedent
interpreting the NLRA. Cf. Oncor I, 887 F.3d at 493 (“Of
course the Board enjoys no special deference in the
interpretations of decisions of the Supreme Court (or, indeed,
of other courts).”).
III.
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. The Board misapplied Jefferson
Standard, and its findings are not supported by substantial
evidence.
A.
NLRA section 7 protects employees’ right “to engage
in … concerted activities for the purpose of collective
bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
This includes a right to appeal to third parties outside the
employment relationship in an effort to “improve terms and
conditions of employment.” Eastex, Inc. v. NLRB, 437 U.S.
556, 565 (1978). At the same time, section 10(c) recognizes
that employers may lawfully dismiss employees “for cause.”
29 U.S.C. § 160(c). For-cause dismissal includes dismissal for

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speech that disparages the employer. Jefferson Standard, 346
U.S. at 476–78.
The Jefferson Standard test attempts to balance
employees’ right to appeal to third parties for support in labor
disputes with employers’ right to discharge employees for
making disparaging statements. In Jefferson Standard, the
Supreme Court held that employees were lawfully discharged
for “detrimental disloyalty” when they distributed handbills
that attacked their employer but did not disclose that the
employees were attempting to gain leverage in collective
bargaining negotiations. Id. at 472, 476–77. For a disparaging
communication to receive NLRA protection, the employee
must disclose that it is being made in connection to an ongoing
labor dispute. DirecTV, 837 F.3d at 34. This enables the listener
to “apply[] … a suitable discount or enhancement” in
evaluating the communication. Oncor I, 887 F.3d at 492. In
other words, because section 7 protects an employee’s
disparaging statements only when they are part of an appeal for
support in an ongoing labor dispute, the employee’s appeal
must link the comments to such a dispute. See Jefferson
Standard, 346 U.S. at 476 (explaining the unprotected “attack
asked for no public sympathy or support” and “related itself to
no labor practice of the company”).
B.
At the hearing, Reed said nothing to connect his concerns
and criticisms about Oncor’s smart meters to an ongoing labor
dispute, and therefore section 7 of the NLRA does not protect
him from dismissal based on the disparaging nature of his
remarks.

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1.
In its first decision, the Board ignored the first step of the
Jefferson Standard test, and on remand, the Board misapplied
the test. There is no dispute that Reed’s two-minute testimony
did not explicitly refer to a labor dispute. At the hearing, Reed
introduced himself as an Oncor trouble man and union
representative, stated he had encountered burned meter bases
when responding to work orders, and attributed the burnings to
smart meters. He did not discuss the stalled negotiations about
extending the Union’s collective bargaining agreement. Nor
did he mention any other ongoing dispute between the Union
and Oncor, much less connect such a dispute to the problems
with smart meters. In short, nothing in Reed’s testimony
disclosed it was “a move in a genuine labor dispute.” Oncor I,
887 F.3d at 498.
Reed’s remarks suffer from a similar defect as the
unprotected speech in Jefferson Standard. In that case, the
employees worked at a television station and were in the midst
of gridlocked collective bargaining negotiations. Jefferson
Standard, 346 U.S. at 467. The employees distributed handbills
attacking the quality of the station’s programming. Id. at 468.
The Supreme Court explained that in disparaging the station’s
programming, the employees did not disclose any labor-related
motive, instead they “purported to speak as experts, in the
interest of consumers and the public at large.” Id. at 472. Like
the station employees, Reed purported to speak in the public
interest: he testified as an experienced trouble man about meter
bases burning up and asserted that smart meters were the cause.
He did not disclose an ongoing labor dispute nor did he connect
his claims about smart meters to any labor dispute.

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Oncor did not violate the NLRA by discharging Reed for
his testimony because nothing in that testimony communicated
a connection to a labor dispute between the Union and Oncor.
2.
The Board nevertheless contends that Jefferson Standard’s
first prong is satisfied because the senate committee would
have realized from the “full context” that the Union and Oncor
were in a labor dispute about smart meters and because Reed
made negative references to his working conditions. Oncor,
373 NLRB No. 80, slip op. at 4. First, the Board found that as
legislators, senate committee members would expect to be
lobbied. Second, the Board presumed the committee would
have background knowledge about a conflict between Oncor
and the Union because the Union had previously lobbied for a
consumer opt-out from the smart meter rollout, and because the
Houston union had also observed meters burning up. Finally,
the Board emphasized that because Reed identified himself as
a representative of the Union, his listeners would understand
that his comments were “in the context of employer-employee
and union-employer relationships.” Id. at 6.
The Board’s general assumptions about lobbying and the
knowledge of Texas lawmakers are attenuated from any
specific labor dispute between Oncor and the Union and
therefore cannot satisfy Jefferson Standard’s first prong. That
the committee members would expect lobbying or could have
known about other labor concerns related to smart meters is not
germane to whether Reed’s statements disclosed a connection
to an ongoing labor dispute. Even if the audience might have
known of some other conflict between Oncor and the Union,
the “mere fortuity of the coexistence of a labor dispute and
third-party product disparagements” is not enough. Oncor I,
887 F.3d at 497 (cleaned up); see also DirecTV, 837 F.3d at 35

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(“[A] third-party appeal must indicate a connection to an
ongoing labor dispute in order to satisfy the first step (mere
contemporaneousness with a dispute is not itself enough).”).
The Board also overstates the significance of Reed’s self-
identification as a union representative. He first identified
himself as representing “Self,” and only second as a member
of “IBEW Local 69.” And we previously expressed skepticism
that Reed’s union membership would have signaled he was
testifying on the Union’s side in a labor dispute over smart
meters, especially given that he signed up to testify “on” rather
than “against” smart meters. See Oncor I, 887 F.3d at 496.
Reed’s identification with the Union revealed nothing about his
intent to pressure Oncor into concessions during ongoing labor
negotiations because those negotiations were never mentioned.
The mismatch between Reed’s testimony and any labor
dispute further demonstrates why the first Jefferson Standard
prong is not met here. To the extent there was a dispute between
Oncor and the Union about smart meters, it was about smart
meters’ effect on the demand for labor. As we previously
recognized, this “was not a topic of Reed’s testimony.” Id. And
we “seriously question[ed]” the assumption “that employee
disparagement of any feature of an innovation is an adequate
signal to listeners that the speaker’s position is driven by
workers’ anxiety about the innovation’s possible job-killing
effects.” Id. Nor does the record suggest the labor negotiations
in which Reed was trying to gain leverage pertained to smart
meters’ safety risks. See id. at 498 (“[S]o far as the collective
bargaining was concerned, smart meters were not an issue
(except as a partial explanation for the parties’ differing
preferences as to contract duration).”). Disregarding the
deficiencies identified in Oncor I, the Board erred by relying
on the general context in which Reed testified to conclude his
statements indicated a connection to an ongoing labor dispute.

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Conceding that “Reed’s testimony did not indicate any
active concerns about the ‘job-killing effects’ of smart meters,”
the Board insists his remarks nonetheless “conveyed other
negative impacts of smart meters on terms and conditions of
employment.” Oncor, 373 NLRB No. 80, slip op. at 5 n.10.
According to the Board, Reed’s testimony satisfied the first
prong because it “clearly conveyed how smart meters
negatively impacted his terms and conditions of employment”
by discussing increased work orders and interactions with
disgruntled customers. Id. at 5–6.
We disagree. An employee’s negative statements about
working conditions, without more, do not show that those
conditions are part of a labor dispute. The Board’s suggestion
that any disparaging communication that references working
conditions satisfies Jefferson Standard’s first prong would
eviscerate the requirement that the protected communication
express a connection to an ongoing employer-employee
dispute.
As we have explained, disparaging statements are only
protected insofar as they are part of an appeal for support in a
labor dispute. The fact that an employee’s criticism of his
employer references working conditions does not necessarily
connect that criticism with such an appeal. In Oncor I, we
faulted the Board for having “done nothing to spell out the
conditions under which a reference to an employer practice that
may generate ‘disgruntled’ customers could ‘indicate’ a link to
a labor dispute.” 887 F.3d at 498. The Board again failed to
articulate this necessary connection.
The Board’s working conditions rationale runs into
another fatal difficulty: substantial evidence does not support
the Board’s finding that Reed testified about smart meters’
negative effects on his conditions of employment. The Board

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takes Reed’s anecdote about the woman whose meter burned
as a claim that smart meters were forcing technicians to deal
with disgruntled customers. But as Member Kaplan pointed out
in dissent, this “did not indicate that there had been any
increase in disgruntled customers on the job, or that the
customers were more disgruntled than usual.” Oncor, 373
NLRB No. 80, slip op. at 12 n.5 (Kaplan, dissenting in part).
And if smart meters were increasing the overall number of
service calls, that effect would not necessarily be negative. The
Union’s main concern with smart meters was, after all, reduced
demand for in-person labor.2 The Board erred both by
assuming that an employee’s discussion of working conditions
necessarily indicates a connection to an ongoing labor dispute
and by finding that Reed’s testimony was a complaint about his
working conditions.3
2 The Board suggests on appeal that Reed’s statements also
referenced working conditions by alluding to safety risks to workers
from handling burning meters. But as the Board’s counsel conceded
at oral argument, that contention is barred by the law of the case. Oral
Arg. Tr. 29:2–11; Oncor I, 887 F.3d at 498 (“[T]he testimony made
no detectible reference to worker risks.”). Under the law of the case
doctrine, we are “loathe to reconsider issues already decided in the
absence of extraordinary circumstances.” LaShawn A. v. Barry, 87
F.3d 1389, 1393 (D.C. Cir. 1996) (en banc) (cleaned up).
3 Oncor also argues the Board lacks statutory authority to order relief
resembling compensatory damages. The Board’s remedial authority
is limited to issuing cease and desist orders and ordering “such
affirmative action including reinstatement of employees with or
without back pay, as will effectuate the policies” of the NLRA. 29
U.S.C. § 160(c). Several of our sister circuits have held that the
Board exceeds its authority when it orders compensation for
“foreseeable pecuniary harms” (so-called “Thryv remedies”). See
NLRB v. Starbucks Corp., 159 F.4th 455, 470–71 (6th Cir. 2025);
Hiran Mgmt., Inc. v. NLRB, 157 F.4th 719, 728–29 (5th Cir. 2025);

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* * *
The Board incorrectly determined that Reed’s testimony
was protected activity where nothing in his remarks
communicated a connection to an ongoing labor dispute. We
will not “tempt unions to sail so close to the wind” by
protecting disparaging statements that do not indicate such a
connection. Oncor I, 887 F.3d at 497. Because Reed was
discharged for cause rather than for protected speech, his
discharge was not an unfair labor practice. We accordingly
grant Oncor’s petition for review and deny the Board’s cross-
petition for enforcement.
So ordered.
NLRB v. Starbucks Corp., 125 F.4th 78, 95–96 (3d Cir. 2024). But
see Int’l Union of Operating Eng’rs, Stationary Eng’rs, Loc. 39 v.
NLRB, 155 F.4th 1023, 1052–53 (9th Cir. 2025) (upholding the
Board’s authority to order compensation for foreseeable pecuniary
harms so long as such compensation is limited to making employees
whole). Because we vacate the Board’s decision on the ground that
Oncor did not commit an unfair labor practice, we do not address this
remedial question.

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