Oncor Electric Delivery Company LLC v. NLRB

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).

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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).

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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.