Court backs Oncor firing union worker over public product attack

By 2012, the Texas Senate Business and Commerce Committee held a hearing to address smart meters’ effects on health. 

Bobby Reed, an Oncor technician and the chief spokesperson for the International Brotherhood of Electrical Workers, Local Union No. 69, showed up to testify. The day before, he had been at the bargaining table with Oncor trying to extend a collective bargaining agreement. Reed had told Oncor’s representatives that if they could not make a deal, he would testify about smart meters at the hearing. No deal was reached. 

At the hearing, Reed identified himself as an Oncor trouble man and union representative. He spent about two minutes telling state legislators that smart meters were burning up meter bases and causing damage to homes. He described a customer interaction where a woman said she never had a problem until the new meter was installed. He did not, at any point, mention the stalled collective bargaining negotiations or any ongoing dispute between the union and Oncor. He signed up to testify “on” smart meters – not “for” or “against” them. 

Oncor discharged him for violating a company policy against providing misleading or fraudulent information to public officials. 

What followed was a legal back-and-forth that stretched over a decade. The NLRB found the termination unlawful, saying Reed’s testimony was protected under Section 7 of the National Labor Relations Act. The D.C. Circuit partially agreed in 2018, finding that Reed’s testimony was for the purpose of mutual aid or protection and was not maliciously untrue. But the court sent the case back to the Board because it had never analyzed whether Reed’s remarks disclosed a connection to an ongoing labor dispute – a key requirement under a longstanding legal framework known as the Jefferson Standard test. The Board tried again on remand, this time arguing that legislators would have understood from context that Reed was speaking as part of a labor conflict. The court was not persuaded.