Oncor Electric Delivery Company, L.L.C.

373 NLRB No. 80 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Oncor Electric Delivery Company, L.L.C. and Inter- national Brotherhood of Electrical Workers, Lo- cal Union No. 69, Affiliated With International Brotherhood of Electrical Workers. Cases 16– CA–103387 and 16–CA–112404 July 26, 2024 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY This case is on remand from the United States Court of Appeals for the District of Columbia Circuit. On July 29, 2016, the National Labor Relations Board issued a Decision and Order in this proceeding.1 The Board found that Oncor Electric Delivery Company, L.L.C. (the Respondent) violated Section 8(a)(3) and (1) of the Act by discharging employee Bobby Reed for his protected concerted union activity of testifying on behalf of the International Brotherhood of Electrical Workers, Local Union No. 69 (the Union) before a Texas state leg- islative committee concerning the safety of smart electric meters. The Board further found that the Respondent vi- olated Section 8(a)(5) and (1) by failing and refusing to provide requested information on three dates. Subsequently, the Respondent petitioned the District of Columbia Circuit for review of the Board’s Order, and the Board filed a cross-application for enforcement. On April 13, 2018, the court issued its decision, in which it granted in part and denied in part enforcement of the Board’s Or- der and remanded the case for further proceedings.2 The court enforced the Board’s Order with respect to the infor- mation requests,3 but vacated and remanded the Board’s finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Reed for his testimony. The court instructed the Board to engage in further analysis of whether Reed’s testimony satisfied the conditions for pro- tection under NLRB v. Electrical Workers Local 1228, 346 U.S. 464 (1953) (Jefferson Standard), and its progeny. On March 18, 2022, the Board advised the parties that it had accepted the court’s remand and invited the parties to file statements of position. The Respondent and Gen- eral Counsel filed statements. The Board has delegated its authority in this proceeding to a three-member panel. 1 Oncor Electric Delivery Co., 364 NLRB 677. 2 Oncor Electric Delivery Co. v. NLRB, 887 F.3d 488. 3 The court granted the Board’s “petition to enforce its order on the requests for information.” Id. at 501. Accordingly, we shall not repeat The Board has reviewed the entire record, including the parties’ statements of position, in light of the court’s deci- sion, which is the law of the case. For the reasons ex- plained below, we reaffirm the Board’s conclusion that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Reed for his protected concerted union activity of testifying at the Texas senate committee hearing on behalf of the Union. Facts The facts are not in dispute. Employee Reed worked for the Respondent as a “trouble man” who completed repair jobs and responded to power outages, and, since 2011, has also been the business manager and financial secretary for the Union. Prior to 2012, Reed had a number of conver- sations with Edward (Rick) Childers, a union official, about problems with smart meters–devices that can report customers’ electricity usage remotely, thereby eliminating the need for personal inspection and the associated labor costs. Reed also voiced safety concerns about the smart meters in an April 14, 2011 email to the staff contact per- son for a state representative. Reed subsequently volun- teered to testify on October 9, 2012, in front of a Texas senate committee studying whether smart meters have harmful effects on public health. By the time of this testi- mony, Oncor had installed over 3 million smart meters. The day before his testimony, Reed met with the Re- spondent’s officials in his capacity as union representative to renegotiate the collective-bargaining agreement that was set to expire later in the month. Negotiations between the parties had stalled over the term of the collective-bar- gaining agreement’s extension. Reed announced that if a deal was not made, he would testify before the senate com- mittee about smart meters. The parties did not reach a deal; the Respondent offered only a one-year extension of the collective-bargaining agreement, in part due to uncer- tainty over how the legislature would respond to smart me- ters. On the day of his testimony, Reed signed the commit- tee’s witness list indicating that he was representing the Union and that he would testify “on” smart meters. He was allotted two minutes. During his testimony, Reed identified his relationship with the Respondent and stated that he was “a representative for our local union there in Dallas, or all over the state, for Oncor employees.” Reed testified that he had received an increase in work orders relating to “the [smart] meters burning up and burning up the meter bases.” He spoke of his experience with an those court-enforced provisions of the Board’s original order here. See Fluor Daniel, Inc., 350 NLRB 702, 702 fn. 5 (2007); Bryan Adair Con- struction Co., 341 NLRB 247, 247 fn. 4 (2004). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 elderly woman, who had been told by the Respondent that she would have to pay for the damage herself before her power could be turned back on. When asked by a senator whether the fires were caused by the smart meters or the age of the boxes, Reed responded that the fires were caused by the smart meters. He further testified that once he noticed the issues with the smart meters, he contacted the local union in Houston to confirm whether their em- ployees were experiencing the same problems, which they were. The day after Reed’s testimony, the Respondent initi- ated an investigation to verify whether the company had received complaints of smart meters causing fires and damaging consumers’ homes. Finding no records of such complaints, the Respondent concluded that Reed’s testi- mony was false and terminated his employment on Janu- ary 14, 2013. Board and Court Proceedings The Board adopted the judge’s decision that the Re- spondent violated Section 8(a)(3) and (1) of the Act by discharging Reed. The Board found that “Reed’s senate testimony was union activity and therefore concerted,” and that it was “‘for the purpose of collective bargaining or other mutual aid and protection’ within the meaning of Section 7 of the Act.” Oncor, 364 NLRB at 678. Citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565–566 (1978), the Board observed that “the ‘mutual aid or protection clause’ protects employees from retaliation by their employers when they seek to improve working conditions through re- sort to administrative and judicial forums, and that em- ployees’ appeals to legislators to protect their interests as employees are within the scope of this clause.” Oncor, above at 679. The Board also noted that it has “consist- ently held that a union official’s testimony before a gov- ernmental body is protected under Sec. 7.” Id. at 679 fn. 9 (citing GHR Energy, 294 NLRB 1011, 1014 (1989) (em- ployee/union official’s testimony before a state agency and a U.S. Senate committee about employer’s violations of environmental law was union and concerted activity)). In Eastex, the Supreme Court upheld the Board’s finding that employees were engaged in protected concerted ac- tivity when they distributed a union newsletter that urged employees to write their legislators to oppose a right-to- work law and criticized the President’s veto of a minimum wage increase. 437 U.S. at 569. Comparing those facts to Reed’s conduct, the Board reasoned that Oncor was an easier case than Eastex because “the Respondent exercises 4 The Mountain Shadows Board cited as illustrative decisions Cincin- nati Suburban Press, 289 NLRB 966, 967–968 (1988); Emarco, Inc., 284 NLRB 832, 833 (1987); and Richboro Community Mental Health Council, 242 NLRB 1267 (1979). In each of those decisions, the Board control over the installation of the smart meters,” and therefore “Reed’s testimony before the Texas Senate about the safety of smart meters bears a more ‘immediate relationship to employees’ interests’ in seeking to improve their own working conditions than was the case in Eastex.” Oncor, above at 679. Further, the Board found that Reed’s testimony was not maliciously untrue and therefore did not lose protection of the Act. Id. at 680- 681. On review, the District of Columbia Circuit read Board precedent, in light of Jefferson Standard, as applying a two-step test to assess whether employees’ third-party ap- peals constitute protected concerted activity. Specifically, “even disparaging statements can enjoy the Act’s protec- tion ‘where [i] the communication indicate[s] it is related to an ongoing dispute between the employees and the em- ployers and [ii] the communication is not so disloyal, reck- less or maliciously untrue as to lose the Act’s protection.’” Oncor, 887 F.3d at 492 (quoting DirecTV, Inc. v. NLRB, 837 F.3d 25, 34 (D.C. Cir. 2016)). The court indicated that its decision in DirecTV had relied on the Board’s de- cision in American Golf Corp., 330 NLRB 1238, 1240 (2000) (Mountain Shadows), in which the Board found an employee’s distribution of a flyer was unprotected under the first prong of Jefferson Standard. Id.4 The court found that substantial evidence supported the Board’s determination on the second step: Reed’s testi- mony did not lose protection of the act for being disloyal, reckless, or maliciously untrue. However, the court found that the Board did not adequately analyze the first step. To begin, the court stated that “[n]either the Board’s prac- tice—nor court precedents—make clear who has the bur- den of proof on the two conditions for employee protec- tion under Jefferson Standard,” and directed the Board on remand to articulate its position, at least as to the first step. Oncor, above at 495, 498. The court then directed the Board to substantively analyze whether Reed’s testimony satisfied the first requirement. The court noted that neither the judge’s decision nor the underlying Board decision contained such an analysis, and cast doubt on the Board’s argument that Reed’s testimony was protected in part due to the Union’s longstanding concern over smart meters’ effect on employment. Id. at 496. The court further stated, “there is no finding by the Board in this case either that Reed disclosed his subjective motive to pressure [the Re- spondent] into concessions during labor negotiations or that the subject matter of Reed’s statements was connected to the ongoing labor dispute.” Id. at 497 (internal found a sufficient relationship between the employee communication and a labor dispute. Thus, none of the decisions—except for Mountain Shadows itself—illustrates when the Board will find that such a relation- ship has not been established. ONCOR ELECTRIC DELIVERY CO., LLC 3 omissions and quotation marks omitted). The court also noted that Reed’s testimony made “no mention of worker hazards” and that the Board subsequently “pivoted from the worker-hazard assertion to a claim that Reed illus- trated the effect on employees’ working conditions of the increase both in the number of service calls and the fre- quency with which they had to deal with disgruntled cus- tomers,” but that the Board failed to make clear how a ref- erence to an employer practice that may generate disgrun- tled customers could indicate a link to a labor dispute. Id. at 498 (internal quotation marks omitted). Discussion In remanding this case to the Board for further proceed- ings, the District of Columbia Circuit first asked for clari- fication on which party bears the burden of proof under the analytical framework set out by the court, which we accept as the law of the case. That is, the court applied a “two-prong test” under which disparaging statements are protected where (1) the communication indicates a rela- tionship to an ongoing employee-employer dispute and (2) the communication is not so disloyal, reckless or mali- ciously untrue so as to lose the Act’s protection. Oncor, 887 F.3d at 492. We find that the General Counsel bears the burden of proof under step one of the framework, while the employer bears the burden of proof under step two. More specifically, the General Counsel bears the burden of showing that the employee’s communication in- dicated a relationship to an ongoing dispute between the employees and the employers. This is consistent with the well-settled principle that the General Counsel has the burden to prove that the activity was “for mutual aid or protection” under Section 7 of the Act. See Five Star Transportation, 349 NLRB 42, 46 (2007) (“[T]he General Counsel had the burden of estab- lishing that the activity was protected, and we have the ob- ligation to decide whether he has met that burden.”), enfd. 522 F.3d 46 (1st Cir. 2008). If the General Counsel has met this burden, the employer then must prove that the communication lost protection of the Act because it was “so disloyal, reckless, or maliciously untrue.” See, e.g., Triple Play Sports Bar & Grille, 361 NLRB 308, 312–313 (2014), affd. 629 Fed. Appx. 33 (2d Cir. 2015) (employer failed to carry burden to prove that employee’s statement was maliciously untrue). With the burden of proof allocated as directed by the court, we turn now to the first prong of the test articulated 5 The dissent asserts that we err in relying on Endicott Interconnect, above, because the D.C. Circuit vacated and denied enforcement of the Board’s order in that case. We disagree and observe, contrary to our colleague’s claim, that the Board’s nonacquiesence policy has nothing to do with the matter. In Endicott, as our colleague acknowledges, the court majority expressly did not pass on the Board’s application of the first in Jefferson Standard: whether the General Counsel has met the burden of proving that Reed’s testimony suffi- ciently indicated a relationship to an ongoing labor dis- pute. “The Board evaluates the protected character of an assertedly disloyal communication ‘in its entirety and in context.’” Endicott Interconnect Technologies, 345 NLRB 448, 450 (2005), enf. denied on other grounds 453 F.3d 532 (D.C. Cir. 2006), quoting Sierra Publishing Co. v. NLRB, 889 F.2d. 210, 217 (9th Cir. 1989).5 Moreover, “in applying the Jefferson Standard doctrine, the Board relies on the definition of a ‘labor dispute’ in Section 2(9) of the Act.” Endicott Interconnect, above at 450. Section 2(9) states: The term “labor dispute” includes any controversy con- cerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regard- less of whether the disputants stand in the proximate re- lation of employer and employee. See id. As the Board has recently observed, the requirement to indicate a connection to a labor dispute “is not onerous and does not require employees to use particular words or phrases.” Xcel Protective Services, 371 NLRB No. 134, slip op. at 5 fn. 13 (2022), enfd. per curiam 2023 WL 4146253 (D.C. Cir. June 23, 2023). Employees need only provide enough information about the existence of a labor dispute to allow third parties to “filter the information critically” when they appeal to those third parties for support. Id. Relevant factors may include the contents of the communication, its intended audience, and the means through which the commu- nication was distributed. Compare Jefferson Standard, above at 468 (finding unprotected employee handbills that were distributed to the public and made no reference to the union, to a labor controversy, or to collective bargaining), and Endicott Interconnect, above at 450–451 (2005) (finding an employee’s contributions to a newspaper article protected, despite the absence of a reference to a union, because “[t]he most casual reader of the article would recognize that the layoff involved a controversy between management and em- ployees concerning employment conditions”). Case prece- dent thus makes clear that, when analyzing under Jefferson Standard whether an appeal to third parties adequately indi- cates the existence of a labor dispute, the Board has rejected a formalistic approach that would require employees to artic- ulate an explicit, precise, or detailed connection between their prong of Jefferson Standard, the point for which we cite the case. Rather, the court’s denial of enforcement in Endicott was based solely on its re- jection of the Board’s application of the second prong of Jefferson Stand- ard, a matter not at issue in this remand. Thus, there is no reason we should not rely on Endicott for its analysis of the first prong, and it is not an application of the Board’s nonacquiesence policy to do so. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 statements and a labor dispute as a condition of exercising their Section 7 rights. See Xcel Protective Services, above, slip op. at 5 fn. 13 (“Our [dissenting] colleague’s formalistic view of the first prong of Mountain Shadows runs the risk of impairing employees’ ability to exercise their Sec. 7 rights, because if employees ‘are not permitted to address matters that are of direct interest to third parties in addition to com- plaining about their own working conditions, it is unlikely that workers’ undisputed right to make third party appeals in pursuit of better working conditions would be anything but an empty provision.’”) (quoting Sierra Publishing Co. v. NLRB, above at 217).6 The key question, as our precedent does make clear, is whether the union representative here pro- vided enough information during his testimony to enable the governmental body to “filter the information critically.” Si- erra Publishing Co. v. NLRB, above at 217. Thus, the full context of the employee’s statement is critically important to the Board’s analysis. Here, Reed testified for two minutes on a topic chosen by the senate committee, and his testimony was presented directly to the committee itself. In contrast, the employees in Jefferson Standard printed 5000 handbills and distributed them broadly in the neighborhood surrounding the employer’s premises, while the employee in Mountain Shadows left 24 copies of a flyer on a table outside of a city council meeting. See Jefferson Standard, above at 468, and Mountain Shadows, above at 1241. These employee ap- peals, written and distributed on paper, were likely to, and could be anticipated to, reach a broad undifferentiated au- dience and extend beyond the initial reader, whereas Reed’s oral testimony was directly presented to the senate committee and attending public specifically interested in the issue and was not likely to be generally distributed to the public at large. Second, when compared with the gen- eral public, the intended audience here—the legislators serving on the senate committee—would be much more likely to filter information presented to them critically. Legislators expect that they will be lobbied—certainly in the context of a legislative hearing—and they understand that petitioners such as hearing witnesses, and specifically one, as here, who identifies himself as a union representa- tive, have particular interests that they seek to advance. In this case, too, legislators presumably had more back- ground knowledge—both on the topic itself (smart me- ters) and on the Union’s relationship with the Respondent – than, for example, members of the general public who might have through happenstance received a leaflet 6 Indeed, the Board does not usually apply the “indication” prong when an employee testifies to a governmental body on express behalf of a union. We do so here as a matter of the law of the case. 7 In contrast, the handbills and flyers in Jefferson Standard and Moun- tain Shadows, respectively, were not similarly tailored. See Jefferson anonymously authored by the union, as in Jefferson Stand- ard or Mountain Shadows. Finally, the Respondent here had, and indeed took advantage of, an opportunity to have a witness testify in favor of smart meters to the same au- dience that heard Reed’s testimony. See Endicott Inter- connect, above at 450–451 (finding an employee’s contri- bution to a newspaper article protected, in part because the employer’s chief executive officer also contributed to the article by expressing the employer’s point of view). Thus, many of the concerns raised by the Court in Jefferson Standard, regarding the impact of a public attack on em- ployer policies, are not present here, as the senate commit- tee would understand from the content of Reed’s testi- mony that the Union was involved in an ongoing labor dis- pute with the Respondent over smart meters. In short, it is in the nature of a state legislator’s role to critically filter information, and this is particularly true in the context of a legislative hearing with dueling witnesses. A legislator, then, reasonably could be expected to infer that a self-identified union representative was testifying to advance the union’s interests and that when the repre- sentative’s testimony conflicted with the public position of the employer, a labor dispute between the union and the employer was likely implicated, and, therefore, the legis- lator would be able to critically filter the information pre- sented. In addition, the content of Reed’s testimony itself gave the senate committee sufficient indication that it was re- lated to an ongoing labor dispute for the legislators to filter it critically. First, Reed identified himself on the senate’s witness list as representing the Union, and further dis- cussed his relationship with both the Union and the Re- spondent in his initial remarks, stating, “I work for Oncor Electric Delivery and have for about 34 years. I was a line- man and now trouble man. As of last April, I became a representative for our local union there in Dallas, or all over the state, for Oncor employees.” Second, Reed lim- ited his testimony to his direct knowledge of smart meters and his significant experience working with them. He spe- cifically addressed how working conditions had changed since the installation of the new meters, as his work orders increased significantly concerning meters that were burn- ing up. The senate committee, in hearing this testimony from an identified union representative, reasonably would understand it to mean that the smart meters were impact- ing employees’ working conditions and posed a risk to workers, as well as customers.7 Finally, Reed testified that Standard, above at 476 (“Their attack related itself to no labor practice of the company. . . [t]he policies attacked were those of finance and pub- lic relations for which management, not technicians, must be responsi- ble.”), and Mountain Shadows, above at 1241 (flyer “bore no indication that it was written by or on behalf of any employee”). Even though some ONCOR ELECTRIC DELIVERY CO., LLC 5 he had reached out to the Houston local to determine if their employees were experiencing similar problems. Reed would have no reason to confer with other locals about smart meters if his own Union local was not con- cerned about their impact on working conditions. Thus, for purposes of the Act, Reed sufficiently indicated the ex- istence of an ongoing labor dispute by identifying himself as testifying on behalf of the Union, specifically mention- ing the safety hazards and changes in working conditions he had experienced as a result of the new meters, and de- scribing how his local union was not the only one experi- encing these issues.8 His testimony, considered in its en- tirety and in context, provided ample information for the senate committee to “filter the information critically.” Xcel Protective Services, above, slip op. at 5 fn. 13 We do not believe that more was required for Reed’s testimony to amount to concerted activity for the “mutual aid or protection” of employees under Section 7 of the Act, consistent with the Supreme Court’s decisions in both Eastex and Jefferson Standard. Reed did not offer his tes- timony as a neutral expert or some other disinterested per- son, but as a union representative who sought the help of the senate committee. In this context, the Act does not require fuller disclosure, to the point of sharing the details of the dispute or the Union’s strategy in seeking help from a third party.9 As the Board has previously explained, cit- ing the Ninth Circuit, such a requirement could unneces- sarily frustrate the exercise of statutory rights. See Xcel Protective Services, above, slip op. at 5 fn. 13.10 of the handbills in Jefferson Standard may have been distributed on a picket line, the Court emphasized the various neutral locations from which the handbills, which did not disclose their union origination, would have reached the array of potential readers who would have no way of otherwise assessing their source. 8 We emphasize that the labor dispute between the Union and the Respondent over smart meters was both genuine and based on actual ex- perience. The Union had an ongoing concern about the safety of the meters, and the Union’s attorney informed Reed of the senate hearing in part due to these safety concerns. A supervisor of the Respondent ad- mitted that, since the Respondent began using smart meters, several trou- ble men had informed him that smart meters were heating up and that the meter base lugs were melting or burning. As recounted in the court’s decision, the Respondent offered only a one-year extension of the col- lective-bargaining agreement, in part, the judge found, “because of un- certainty over how the legislature would respond to smart meters.” Thus, both the Respondent and the Union were aware that smart meters were actively impacting working conditions and preventing progress on bar- gaining. 9 Our dissenting colleague cites no authority for his assertion that disclosure of the labor dispute without reliance on “inference[s]” is re- quired. 10 Our dissenting colleague challenges our analysis of the first prong of Jefferson Standard as contrary to the court’s remand instructions, urges that our “analysis is dependent upon an implicit assumption that the first prong . . . as written, requires too much,” We disagree with and reject these contentions. To be clear, consistent with the court’s remand instructions, we have applied Jefferson Standard’s two-prong test while Our dissenting colleague suggests that the Board’s holding in Xcel is inapposite, because the communications “at issue [there] were related to an actual ongoing labor dispute,” while Reed’s testimony here “made no reference whatsoever to a labor policy or practice of the Respondent, let alone an ongoing labor dispute.” We reject our col- league’s contention, which, if accepted, would narrow the Board’s traditionally broad interpretation of the statutory phrase “labor dispute.” See Emarco, Inc., 284 NLRB at 833 (“[W]e believe our dissenting colleague’s conclusion . . . results from an overly restrictive view of what consti- tutes a ‘labor dispute.’”). Reed’s testimony indicated that it was related to an “ongoing labor dispute” under the first prong of Jefferson Standard because it addressed “a con- troversy that relate[d] to terms or conditions of employ- ment.” Endicott Interconnect, 345 NLRB at 450; see also Emarco, Inc., above at 833 (“The definition of labor dis- pute under Section 2(9) of the Act includes ‘any contro- versy concerning terms, tenure or conditions of employ- ment.’”). As explained above, Reed’s testimony clearly conveyed how smart meters negatively impacted his terms and conditions of employment. Reed specifically identi- fied himself as a union representative, directly addressed the increase in work orders relating to smart meters, and described how these changes in working conditions had prompted him to contact the local union in Houston to see if employees there were experiencing the same issues.11 Relatedly, we also reject the dissent’s characterization of our opinion as changing Board law so that the first following the court’s instructions with respect to the first prong to “spell out the conditions under which a reference to an employer practice that may generate ‘disgruntled’ consumers could ‘indicate’ a link to a labor dispute.” Oncor, 887 F.3d at 498. This is simply a situation in which we and our colleague have looked at the same caselaw and disagree as to its application. Our dissenting colleague further contends that the court has already rejected the position we are advancing here—that Reed’s testimony to the senate committee sufficiently indicated a labor dispute so as to satisfy the first prong of Jefferson Standard. We disagree. We are not arguing the point that the court questioned: “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.” Oncor, above at 496. Indeed, we agree that Reed’s testimony did not indicate any active concerns about the “job- killing effects” of smart meters. However, we find that his testimony adequately indicated that it related to an ongoing labor dispute, as de- fined in Sec. 2(9) of the Act, because it conveyed other negative impacts of smart meters on terms and conditions of employment. As instructed by the court, we thus have described the conditions “under which a ref- erence to an employer practice . . . could ‘indicate’ a link to a labor dis- pute” by finding that where an employee identifies himself as a longtime employee and union representative, speaks directly on the negative im- pact of a product on his day-to-day working conditions, and further indi- cates that he has discussed these changes to working conditions with an- other union local, the “indication” prong clearly has been met. Id. at 498. 11 We note that our colleague’s speculation that the Houston local did not understand Reed’s inquiry to be referencing a labor dispute is beside DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 prong of the Jefferson Standard test is satisfied “so long as the disparaging comments contain any reference what- soever to employees’ terms and conditions of employ- ment” or “when one employee neutrally discusses his terms and conditions of employment in the context of dis- paraging his employer’s product, without any reference to any objection to the employer’s labor policies or prac- tices” (emphasis added). We believe that the facts and context here demonstrate that Reed’s reference to em- ployer practices was not “neutral,” and thus we disagree with the dissent that Reed’s testimony was “neutral” or that it did not “suggest that his terms and conditions of employment had been negatively affected.” Reed first identified himself as a 34-year employee of the Respond- ent and as a representative of the Union, and the audience thus would have understood Reed’s comments to be in the context of employer-employee and union-employer rela- tionships. When viewed in that context, Reed’s comments clearly conveyed to his audience that the smart meters were negatively impacting his and his colleagues’ work- ing conditions. We further disagree with our colleague’s assertion that we are, in effect, watering down the Jefferson Standard test to require only “a nexus between the communication and employees’ general terms and conditions of employ- ment,” rather than “a connection to either a ‘labor dispute,’ or . . . a labor ‘controversy.’” The dissent’s error is rooted in its overly circumscribed understanding of a “labor dis- pute” under the Act. As we have previously discussed, the subject matter of Reed’s testimony, taken in context, eas- ily falls within the statutory definition of a labor dispute in Section 2(9) of the Act. And we emphasize, again, that this ongoing disagreement between the Respondent and the Union over smart meters was both genuine and based on actual experience. See above at fn. 8. Moreover, Reed, in his union capacity, raised issues, including an increase in work orders relating to smart meters and customer com- plaints directed to workers, that negatively impacted em- ployees’ terms and conditions of employment (and further stated that he had contacted another union local to discuss the point. The relevant issue is whether Reed’s testimony to the senate committee, which included, inter alia, his account of contacting the Hou- ston local about the issues with smart meters, adequately indicated a re- lationship to a labor dispute. 12 Tellingly, our colleague offers no response to our showing that the facts here simply do not raise the same concerns as those underlying the Court’s Jefferson Standard decision. Unlike in Jefferson Standard, here Reed did not take “pains” to separate himself from the Union or union leadership, launch a “continuing attack” on a topic unrelated to his job duties, or purport to represent “the interest of the public rather than [] that of the employees.” Id. at 476–477; see also Mountain Shadows, above at 1241 (comparing the flyer at issue to the handbill in Jefferson Standard in that it “made no reference to a labor controversy or to col- lective bargaining,” “made a sharp, public, disparaging attack upon the the impact of smart meters); this is, as we found in our initial decision in this case (and which finding the court did not disturb), quintessential Section 7 activity. See e.g., Gross Electric, Inc., 366 NLRB No. 81, slip op. at 2 (2018) (union officer’s statement made in official capacity and “related to union members’ employment concerns” protected). Declining to find that the workplace concerns raised here reflected a labor dispute would deny protection to what is clear Section 7 activity. Finally, we emphasize that Reed’s testimony was lim- ited to two minutes, and that, during this time, a senator also asked him two questions. Thus, we note that Reed did not have complete control over the subject matter dis- cussed during his two minutes of allotted time. While he was briefly permitted to speak freely, he was then con- strained to answering the senator’s questions. See En- dicott Interconnect, above at 451 fn. 12 (employee “could not control what portion of his interview would be quoted” in the newspaper). Nonetheless, in Reed’s limited time testifying, he took multiple steps to identify himself and his affiliation with the Union, and to reference the nega- tive impact of smart meters on his working conditions. Reed explicitly acknowledged his union connection twice—both when he identified himself as a union repre- sentative and when he discussed how he had contacted an- other union local to discuss the impact of smart meters. Further, the senate committee not only heard Reed’s testi- mony, but it also heard from a representative for the Re- spondent, who took an opposing view. In this context, the committee would have been able to “identify the interests of the parties to the dispute.” See Endicott Interconnect, above at 451. Thus, contrary to the dissent’s assertions, our analysis aligns directly with Jefferson Standard and its progeny. Cf. Jefferson Standard, above at 468, 477 (dis- cussing how the employees’ handbills constituted “a con- certed separable attack purporting to be made in the inter- est of the public rather than in that of the employees,” in part because they “made no reference to the union, to a labor controversy or to collective bargaining”).12 quality of the company’s product and its business policies,” and “pur- port[ed] to be made in the interest of the public rather than in that of the employees”) (internal quotation marks omitted). To the contrary, Reed did the opposite of the employees in Jefferson Standard and Mountain Shadows by aligning himself with the Union and testifying openly to a specifically designated audience, on a topic with which he had direct ex- perience. While ignoring the dramatic differences between Jefferson Standard and this case, our colleague argues that “the Jefferson Standard test has never merely required that the listener might be able to conclude the existence of a labor dispute by virtue of the fact that the employee disparaging the employer was a union representative” and that “sophis- tication—or lack thereof—of the audience has never been considered in determining whether the first prong . . . has been satisfied.” Of course, that is not our position. Rather, our decision finds Reed’s testimony ONCOR ELECTRIC DELIVERY CO., LLC 7 The Board has found that the first prong of Jefferson Standard was not satisfied in only two cases, each involv- ing employees who were not forthcoming about their un- ion affiliation.13 That is clearly not the case here. In all other cases analyzing the first prong of the Jefferson Standard test, including the three cases cited by our dis- senting colleague, the Board has found that the communi- cation at issue adequately indicated a labor dispute.14 Thus, it is our dissenting colleague who advocates for a novel approach to analysis under Jefferson Standard, as he would force the square peg of Reed’s overtly union- identified testimony about a workplace issue into the round hole of a covert attack on the employer of unidenti- fiable origin directed to the general public and facially un- related to a labor controversy. In sum, applying the court’s framework as the law of the case on remand, we find that Reed’s testimony to the senate committee sufficiently indicated an ongoing labor dispute so as to satisfy the first step of the applicable test here. As a result, because the court enforced the Board’s finding that Reed’s testimony did not lose protection of the Act under step two of the test, we affirm our conclu- sion that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Reed for his protected concerted activities. AMENDED REMEDY In accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent shall be ordered to compensate Reed for any other direct or foreseeable pecu- niary harms incurred as a result of the unlawful termina- tion, including reasonable search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New protected based on his identification as a union representative and the content of his testimony; it is inaccurate to imply that we have found the first prong to be met merely because Reed was a union representative. To the extent our colleague argues that the characteristics of the audience should not be considered, we note that the first prong of the Jefferson Standard test has been described as “focus[ing] on whether it would be apparent to the target audience that the communication arises out of an ongoing labor dispute.” DirecTV, 837 F.3d at 35 (emphasis added). 13 See Jefferson Standard, above at 476 (finding flyers did not indicate a connection to a labor dispute where the employees “took pains” to sep- arate themselves from their union affiliation and leadership positions); Mountain Shadows, above at 1241 (language in handbill “omitted all ref- erence to the labor controversy” and “made no mention of the labor dis- pute, the [u]nion, management’s treatment of the employees, or any issue having anything discernibly to do with employees’ terms and conditions of employees”). 14 See MikLin Enter., Inc. v. NLRB, 861 F.3d 812, 824 (2017) (“Sub- stantial evidence supports the Board’s findings that the employees’ Sick Horizons, supra, compounded daily as prescribed in Ken- tucky River Medical Center, supra. ORDER The Respondent, Oncore Electric Delivery Company, LLC, Dallas, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees for supporting the International Brotherhood of Electrical Workers, Local Union No. 61, or any other la- bor organization. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Bobby Reed full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Bobby Reed whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful ter- mination, in the manner set forth in the remedy section of the underlying decision, as amended in this decision. (c) Compensate Bobby Reed for the adverse tax conse- quences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 16, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the back- pay award to the appropriate calendar years. (d) File with the Regional Director for Region 16, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a Day posters and press releases were related to their protected concerted effort to improve the terms and conditions of their employ by obtaining paid sick leave.”); DirecTV, 837 F.3d at 35 (“In this case . . . there is no dispute that the technicians’ statements in the interview segment indi- cated a relationship to an ongoing dispute between the employees and the employers, satisfying the first prong.”) (internal quotation marks omitted); Emarco, Inc., above at 832–833 (“[T]he [c]harging [p]arties’ remarks were an extension of a legitimate and ongoing labor dispute which predated the strike and of which the strike proper was only one manifestation.”); Endicott Interconnect, above at 450 (finding that a newspaper article, which did not reference a union, nonetheless “pro- vide[d] more than enough information for an ordinary reader to under- stand that a controversy involving employment [was] at issue”); Xcel Protective Services, above, slip op. at 5 (finding sufficient indication of labor dispute where employee “describe[d] the negative effect the [r]espondent’s weapons-qualification practices had on the officers’ safety on the job”). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 copy of backpay recipient’s corresponding W-2 form re- flecting the backpay award. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge, and within 3 days thereafter, notify the employee in writing that this has been done and that the discharge will not be used against him in any way. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its Dallas, Texas facility, copies of the attached notice marked “Appendix.”15 Copies of the notice, on forms pro- vided by the Regional Director for Region 16, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since December 18, 2012. (h) Within 21 days after service by the Region, file with the Regional Director for Region 16 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. July 26, 2024 15 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facility reopens and a sub- stantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic ______________________________________ Lauren McFerran, Chairman ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, dissenting in part. As the Supreme Court recognized more than 70 years ago in NLRB v. Local Union No. 1229, Int’l Brotherhood of Elec. Workers (Jefferson Standard), 346 U.S. 464 (1953), Board cases in which employers discharge em- ployees based on disparaging, or disloyal, statements about their employer implicate two different aspects of the Act: Section 7 and Section 10(c). In reconciling those two sections, the Court found that “[t]here is no more ele- mental cause for discharge of an employee than disloyalty to his employer.” Id. at 476. Accordingly, noting that the Act did not “weaken the underlying contractual bonds and loyalties of employer and employee,” the Court found that the employer lawfully discharged several employees who had “sponsor[ed] or distribut[ed” handbills to the public— some of which had been handed out on a lawful picket line protesting the breakdown of collective-bargaining negoti- ations—that disparaged the respondent’s television sta- tion. The Court found that because the disparaging hand- bills did not contain any reference to the parties’ labor controversy but, rather, “had no discernable relation to that controversy,” the “means” used by the employees de- prived them of the protections of the Act. Id. at 476-478. In 2000, the Board created a two-prong test, consistent with the holding in Jefferson Standard, for analyzing such disparaging communications made to third parties. Amer- ican Golf Corp., 330 NLRB 1238 (2000) (Mountain Shad- ows). Under that framework, employees’ disparagement of their employer or their employer’s products lose the protection of the Act unless two requirements are met: 1) the communication must indicate that it is related to an means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ONCOR ELECTRIC DELIVERY CO., LLC 9 ongoing dispute between the employees and the employer, and 2) the communication is not so disloyal, reckless, or maliciously untrue as to lose the Act’s protection. Id. at 1250.1 Today, my colleagues take the unprecedented step of finding that the language in the first prong of the Jefferson Standard test does not mean what it says, concluding that the express requirements of that prong need not be satis- fied in determining whether an employee’s disparaging communications retain the protection of the Act. Instead, they create a new standard, drastically expanding the con- cept of concerted activity under the Act and undermining the Supreme Court’s recognition that employers should be permitted to discipline employees for non-protected state- ments disparaging their product. Because my colleagues’ decision is not only contrary to the court’s remand instruc- tions establishing the Jefferson Standard test as the law of the case, but is also inconsistent with Board and judicial precedent, including the Supreme Court’s analysis in Jef- ferson Standard, I must dissent.2 I. BACKGROUND The question presented in this case, which is back be- fore the Board upon remand from the United States Court of Appeals for the District of Columbia Circuit (“the D.C. Circuit” or “the court”), is whether the Respondent vio- lated the National Labor Relations Act by terminating em- ployee Bobby Reed in response to his testimony to a state committee in which he disparaged the Respondent’s prod- uct by making claims that the Respondent concluded were false. In its initial decision finding that the Respondent violated the Act by terminating Reed, the Board chose not to apply the two-prong Jefferson Standard test. The Board found that test did not apply because Reed’s statements “did not attack the Respondent, its operations, or its prod- uct but rather raised legitimate, employment-related con- cerns . . . .” Oncor Electrical Delivery Co., 364 NLRB 677, 681 fn. 15 (2016) (“Oncor I”). Upon review, the D.C. Circuit rejected the Board’s de- cision, finding that Reed’s testimony did disparage the Re- spondent’s product and that, therefore, the Board was re- quired to apply the Jefferson Standard test “for assessing whether employees’ third-party appeals constitute pro- tected concerted activity or instead amount to ‘such detri- mental disloyalty’ as to permit the employees’ termination for cause.” Oncor Electric Delivery Co. v. NLRB, 887 1 Although this test was not established by the Supreme Court, it is often referred to as the Jefferson Standard test, and I will follow that practice here. 2 In their decision, my colleagues find it “telling” that I “[offer] no response” to their position that “the facts here simply do not raise the same concerns as those underlying the court’s Jefferson Standard deci- sion.” To the contrary, I have responded to that position. But in case I F.3d 488, 492 (D.C. Cir. 2018) (“Oncor II’) (quoting Di- recTV, Inc. v. NLRB, 837 F.3d 25, 34 (D.C. Cir. 2016)). The court then found that the Board had failed to consider whether Reed’s testimony satisfied the first requirement of that test—that “the communication indicate[s] it is re- lated to an ongoing dispute between the employees and the employers . . . . .” Id. at 492 (quoting DirecTV, Inc. 837 F.3d at 34 (citing American Golf Corp., 330 NLRB 1238, 1240 (2000) (“Mountain Shadows”)) (additional citations omitted). Accordingly, the court remanded the case to the Board with instructions to “clarify the burdens of proof in cases under Jefferson Standard and articulate whether and how those burdens were met here. Id. at 501 (emphasis added). My colleagues successfully answered the court’s first question, clarifying that the General Counsel has the ini- tial burden to establish that the first prong is satisfied: i.e., that “the communication indicate[s] it is related to an on- going dispute between the employees and the employer . . . . .” Oncor II, 887 F.3d at 492 (quoting DirecTV, Inc., 837 F.3d at 34 (internal citations omitted)). As my col- leagues explain, if the General Counsel meets that burden, then the burden shifts to the Respondent to establish that the communication is so disloyal, reckless, or maliciously untrue that it loses the protection of the Act. I agree with this allocation of burdens. Unfortunately, having established that the General Counsel has the burden to establish that the requirements of the first prong of the Jefferson Standard test are met, my colleagues erroneously concluded that the General Counsel met this burden. As I will explain, nothing in Reed’s testimony indicated that his disparagement of the Respondent’s smart meters was related in any way to a la- bor dispute, as required under the first prong of the Jeffer- son Standard test. In their decision, my colleagues fail to identify any spe- cific language in Reed’s testimony that indicates to the lis- tener that his testimony is connected to an ongoing dispute between the employees and the Respondent. Accordingly, even though my colleagues protest that they are applying the Jefferson Standard test, as required by the court’s re- mand, they are not. Instead, their analysis is dependent upon an implicit assumption that the first prong of the Jef- ferson Standard test, as written, requires too much. One can only conclude from my colleagues’ decision that, in was not sufficiently clear: It cannot be disputed that the court, in denying enforcement of the Board’s initial decision, specifically found that the Board had erred by not applying Jefferson Standard to this case. Ac- cordingly, whether or not my colleagues believe that the Supreme Court’s decision and analysis in Jefferson Standard is applicable here is of no moment. The law of the case establishes that it is. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 their view, all that should be required in order to satisfy the first prong is that the audience hearing an employee’s disparaging statement about the employer should be able to “filter the information critically” and glean, from the context, that the disparaging statement bears some relation to employees’ terms and conditions of employment. This, of course, is not what the Jefferson Standard test requires. Perhaps in some future appropriate case, my colleagues could seek to revise the Jefferson Standard test and leave it up to the courts to determine whether or not that broader test would be consistent with the Supreme Court’s Jeffer- son Standard decision.3 Here, however, my colleagues do not have that option. Unlike my colleagues, I choose to follow the court’s in- structions, which requires applying the Jefferson Standard test as written. Because I find that Reed’s testimony dis- paraging the Respondent’s smart meters failed to inform the audience of any connection to an ongoing labor dis- pute, I find that his testimony did not satisfy the first prong of Jefferson Standard. Accordingly, I would dismiss the complaint allegation that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Bobby Reed. II. RELEVANT FACTS The Respondent provides electrical service to custom- ers in the Dallas area, and the Union represents field em- ployees of the Respondent. Bobby Reed, a long-term em- ployee of the Respondent who was an employee at all rel- evant times, served as the Union’s chief spokesperson in bargaining for a successor to the parties’ agreement set to expire on October 25, 2012. Beginning in 2008 and through the end of 2012, the Respondent replaced analog meters with smart meters at over 3 million of its custom- ers’ homes. As the court found, smart meters were not an issue in the parties’ bargaining over a successor agree- ment.4 After the first day of negotiations, Reed volunteered to testify at a public hearing before a Texas state committee “tasked with ‘study[ing] whether advanced meters, or smart meters, that have been, and will be, installed in Texas have harmful effects on [public] health.’” Oncor II, 887 F.3d at 493. At the hearing, Reed signed the com- mittee’s witness list as representing both himself and the union and wrote that “he would testify ‘on’ smart meters, rather than ‘for’ or ‘against.’” Id. As the court found: During his brief testimony, Reed said that he represented the local union in Dallas and had consulted its equivalent 3 Of course, given Board tradition, that case would require a three- member majority. 4 The court found that the only role that smart meters played in the parties’ negotiations was “as a partial explanation for the parties’ in Houston. He testified that “the work orders that I went out on were beginning to be increasingly of the meters burning up and burning up the meter bases.” Reed reit- erated that this occurrence was becoming more frequent, and had begun “when they started installing [the smart meters].” When asked by a senator whether the burning could be attributed to the power line, Reed was em- phatic, “No, it’s the meter.” Reed made two arguable references to working conditions. First, he testified to receiving repair orders or damaged boxes after the me- ters had burned. There was no mention of employees’ encountering [hazardous conditions] while servicing the meters. Second, his testimony focused on his experience with disgruntled customers. He spoke of an “elderly woman” . . . who had been told by [the Respondent] that she would have to pay for the damage herself before her power could be turned back on. Reed concluded that he did not “know much about [radio] frequency . . . [but did] know a little bit about fire and heat, and these things are causing damage to people’s homes.” Id. at 494–495 (internal record citations omitted). The Respondent investigated Reed’s assertions that its smart meters had been starting fires and damaging cus- tomers’ homes and concluded that his testimony was false. Thereafter, the Respondent terminated Reed. III. THE BOARD’S DECISION In finding that the Respondent unlawfully terminated Reed, the Board relied on the following findings. First, the Board found that Reed’s testimony “related to (and was spurred by) an ongoing and legitimate concern of the Union about the safety of represented [bargaining-unit] employees working with the meters . . . .” Oncor I, 364 NLRB at 679. Next, the Board found that, “in his senate testimony, Reed illustrated the effect on employees’ work- ing conditions of the increase both in the number of ser- vice calls and the frequency with which they had to deal with disgruntled customers when explaining to them that they must pay to repair or replace their burned up meter bases.” Id. at 679–680. Accordingly, the Board con- cluded that Reed’s testimony was protected by Section 7 “unless the Respondent can prove that some aspect of the testimony warrants forfeiture of protection.” Id. at 680. Because the Board found that the testimony was not mali- ciously false, it concluded that Reed was unlawfully ter- minated for engaging in protected concerted union activ- ity. Id. at 681. Importantly, as noted above, the Board differing preferences as to contract duration.” Oncor II, 887 F.3d at 498. The court noted that the issue of smart meters was, at most, “a deep back- ground dispute” between the parties. Id. at 498. ONCOR ELECTRIC DELIVERY CO., LLC 11 rejected the Respondent’s argument that Reed’s testimony lost the Act’s protection because it was disloyal to the Re- spondent because it disparaged the Respondent’s prod- ucts. Id. at 681 fn.15. IV. THE COURT’S DECISION The court squarely rejected the Board’s finding that the two-prong test established in Jefferson Standard was not the appropriate standard to apply to this case. The court cited the specific requirements of that standard: “Under the test, even disparaging statements can enjoy the Act’s protection ‘where [i] the communication indicate[s] it is related to an ongoing dispute between the employees and the employers and [ii] the communication is not so dis- loyal, reckless or maliciously untrue as to lose the Act’s protection.’” Oncor II, 887 F.3d at 492 (quoting DirecTV, 837 F.3d at 34 (citing Mountain Shadows, 330 NLRB at 1240)) (additional citations omitted). The court made clear that, in Jefferson Standard, the Supreme Court held that a “disparaging attack . . . does not qualify as a pro- tected [Section] 7 collective bargaining activity when the subject matter ‘ha[s] no discernable relation to [the labor] controversy.” Id. at 497 (emphasis added) (quoting Jef- ferson Standard, 346 U.S. at 476–477); see also DirecTV, 837 F.3d at 35. Accordingly, the court remanded the case back to the Board to apply the Jefferson Standard test as the correct legal standard. The court decision did not end there, however. The court noted that “[b]ecause at least one of the reasons [proffered in the Board’s brief before the court]—reliance on an undisclosed attempt to gain leverage in bargain- ing—rests on a legal error, we comment on the Board’s reasoning as guidance for the remand.” Oncor II, 887 F.3d at 495. In addition to concluding that “the testimony made no detectible reference to worker risks,” id. at 498, the court expressed doubt that the Board’s theory that a “years-long dispute between Oncor and the union over the deployment of smart meters” and “the union’s previous lobbying of the Texas legislature for a bill that would allow customers to opt out of smart meters” would be sufficient to establish that the first prong of the Jefferson Standard test had been met. The court specifically expressed doubt that the Board’s position that “the legislators would recognize that the Union and Oncor were engaged in a labor dispute re- garding smart-meter deployment, and that Reed was at the hearing to represent the Union’s side of that dispute” was persuasive. As the court explained: The record gives very little indication of significant un- ion lobbying on smart meters in the years before Reed’s testimony. Reed had e-mailed legislative staff about smart meters in April 2011, but that e-mail was sent to a different committee from the one he testified before, in regard to a bill that was no longer pending when he tes- tified (and the e-mail itself contained no overt nexus to employee interests). While we recognize that Reed could be expected to offer only so many caveats in his two-minute testimony, and while a legislative audience may be especially sophisticated at spotting embedded special interest claims, Reed did not sign up to speak “for” or “against” smart meters, but “on” the topic. It seems clear enough that the union opposed smart meters because automation threatened a decline in the work- force, but that was not a topic of Reed’s testimony. If on remand it appears that the union’s longstanding concern over smart meters’ effect on employment is the only rel- evant “labor dispute,” we seriously question . . . the im- plicit 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 (and thus possibly subject to some discount). Of course it is for the Board to determine, on remand, what other indi- cation—if any—the audience had of a connection be- tween Reed’s testimony and an ongoing labor dispute. Oncor II, 887 F.3d at 496 (internal citations and parentheti- cals omitted) (first, third, and fourth emphases added). Thus, in remanding the matter to the Board, the court expressed “serious” doubt that Reed’s testimony satisfied the first prong of the Jefferson Standard test either as a result of any special sophistication on the part of the leg- islators or the fact that Reed identified himself as a union member. Instead, it directed the Board to determine if any “other indication” in Reed’s testimony created a connec- tion with an ongoing labor dispute between the Respond- ent and its employees, as required under the first prong. V. REED’S TESTIMONY DID NOT SATISFY THE FIRST PRONG OF THE JEFFERSON STANDARD TEST The task currently before the Board is to apply the first prong of the Jefferson Standard test to determine whether Reed’s testimony in a public hearing before the Texas sen- ate committee satisfied this standard. I believe it is clear that it did not. I note that, as the court found, the hearing took place before “a Texas state committee tasked with [s]tudy[ing] whether advanced meters, or smart meters, that have been, and will be, installed in Texas have harm- ful effects on [public] health.” Oncor II, 887 F.3d at 493 (internal quotation marks omitted). In other words, the sole purpose for the committee’s existence was to explore the effects of smart meters on the public. No one listening to Reed’s testimony would have had reason to believe that his testimony—as someone who installs smart meters— DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 that smart meters had been starting fires at customers’ homes was related to an ongoing labor dispute rather than the effects of smart meters on public health and safety, un- less he indicated that it did. Reed’s testimony, however, contained no such indica- tion. The testimony made no reference whatsoever to a labor policy or practice of the Respondent, let alone an on- going labor dispute. Nor did it contain any explanation of a nexus between his testimony regarding the fact that the Respondent’s smart meters had been catching fire and damaging customers’ homes and an ongoing labor dis- pute.5 Because Reed’s testimony does not satisfy the re- quirements of the first prong of the Jefferson Standard test, the Respondent did not violate the Act for terminating him for disparaging—in its view, falsely—the Respond- ent’s products. My colleagues assert that, by requiring some mention of an ongoing labor dispute, I am “narrow[ing] the Board’s traditionally broad interpretation of the statutory phrase “labor dispute.” Indeed, citing Endicott Interconnect Technologies, 345 NLRB 448, 450 (2005), enf. denied, 453 F.3d 532 (D.C. Cir. 2006), they suggest that I err be- cause I should be interpreting “labor dispute” to mean “a controversy that relate[s] to terms or conditions of em- ployment.” This makes no sense. Certainly, there is noth- ing in Jefferson Standard and its progeny, federal law, or my dissent that suggests that there is a material difference between “dispute” and “controversy.”6 So what are my colleagues saying? They are asserting that the Jefferson Standard test is satisfied when one employee neutrally discusses his terms and conditions of employment in the 5 I note that, even if first prong of Jefferson Standard did not require that the communication inform the audience of a nexus to an “ongoing labor dispute”—which interpretation would be contrary both to the lan- guage of the test and to the remand directions of the court—but merely to inform the audience of a nexus to employees’ terms and conditions of employment, Reed’s testimony would still fail to satisfy the test. As the court found, only two statements during the testimony were even argua- bly related to terms and conditions of employment. The first was Reed’s testimony that “the work orders that [he] went out on were beginning to be increasingly of the meters burning up and burning up the meter bases.” Oncor II, 887 F.3d at 493-494. This testimony, however, is entirely neu- tral. Reed does not testify that this shift in work orders had any negative repercussions whatsoever on employees’ terms and conditions of em- ployment, and my colleagues do not explain how a neutral statement about terms and conditions of employment could be attempting to gen- erate support from third parties about a labor issue. The second statement is that he had experience with disgruntled customers because the smart meters were causing damage to people’s homes and customers were be- ing required to pay for that damage. Reed did not indicate that there had been any increase in disgruntled customers on the job, or that the cus- tomers were more disgruntled than usual; rather, he testified that he had encountered customers who were disgruntled about having to pay for damage to their homes caused by the smart meters. Again, I do not be- lieve that any reasonable reading of Jefferson Standard and its progeny would lead to the conclusion that an employee’s statement that they have context of disparaging his employer’s product, without any reference to any objection to the employer’s labor pol- icies or practices, let alone any reference to an actual labor dispute. This, in a nutshell, summarizes the fatal flaw in my colleagues’ decision today. In their view, the Jeffer- son Standard test is satisfied by a nexus between the com- munication and employees’ general terms and conditions of employment and does not require that the disparaging communication indicate a connection to either a “labor dispute,” or, if you will, a labor “controversy.” Unfortu- nately for their position, that is precisely what the test re- quires. Finally, my colleagues assert that I am “advocat[ing] for a novel approach” and that I “[cite] no authority” for that approach. Again, I do not understand my colleagues’ point.7 I am not advocating for any approach. Objective facts establish that the Board and the courts are bound by the Supreme Court’s 1953 decision in Jefferson Standard and that, for nearly a quarter century, the Board has ap- plied a two-prong test that requires, in part, that the dis- paraging communication at issue indicate a nexus to a la- bor dispute.8 See, e.g., Oncor II, 887 F.3d at 497 (finding Jefferson Standard standard requires that “testimony indi- cate[s] a nexus to an ongoing labor dispute”); MikLin En- ter., Inc. v. NLRB, 861 F.3d 812, 822 (2017) (“[T]he crit- ical question in the Jefferson Standard disloyalty inquiry is whether employee public communications reasonably targeted the employer’s labor practices, or indefensibly disparaged the quality of the employer’s product or ser- vices. The former furthers the policy of the NLRA; the latter does not.”); DirecTV, 837 F.3d at 35 (2016) (“The encountered disgruntled customers, standing alone, is sufficient to satisfy the first prong of that test. Nor can my colleagues identify any such case. 6 My colleagues assert that “the subject matter of Reed’s testimony, taken in context, easily falls within the statutory definition of a labor dis- pute in Section 2(9) of the Act.” That section defines “labor dispute” as follows: The term “labor dispute” includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. It is not clear to me why my colleagues believe that this definition “easily” demonstrates why Reed’s testimony indicated that it was related to a labor dispute, as required under Jefferson Standard. Sec. 2(9) defines “labor dis- pute” as including “any controversy” concerning terms and conditions of em- ployment. Either way, the standard definitions of both “dispute” and “con- troversy”are disagreement between two (or more) entities. No such disagree- ment was identified in Reed’s testimony. 7 My colleagues attack in this regard is particularly strange given that they cannot cite a single case that supports their decision to find a viola- tion in the circumstances presented. 8 I note that, insofar as courts are interpreting the requirements of Jefferson Standard, the Board’s interpretation of what is required is not entitled to deference. ONCOR ELECTRIC DELIVERY CO., LLC 13 first prong of the test—whether the communication indi- cates it is related to an ongoing dispute between the em- ployees and the employers—focuses on whether it would be apparent to the target audience that the communication arises out of an ongoing labor dispute. . . . In Jefferson Standard, the handbill in question fell outside the Act’s protection because it simply attacked the quality of the company’s product without indicating any connection to the ongoing labor controversy.”) (internal citations, and accompanying quotation marks and revisions, omitted); Emarco, Inc., 284 NLRB 832, 832–833 (1987) (finding disparaging comment protected when the conversation referenced the employees’ strike based on the employer’s delinquency in making pension plan payments as well as the employer’s failure to timely recall employees follow- ing the strike). VI. MY COLLEAGUES’ DECISION RESTS ON MISREPRESENTATIONS OF REED’S TESTIMONY My colleagues assert that they are correctly applying the Jefferson Standard test because, in their view, Reed’s tes- timony adequately indicated that it was related to a labor dispute because Reed “raised issues . . . that negatively impacted employees’ terms and conditions of employ- ment.” Even if my colleagues are correct in their interpre- tation of the requirements of the first prong of the test, the General Counsel failed to meet her burden to establish that Reed’s testimony raised any such issues. As the court found, only two statements during the tes- timony were even arguably related to terms and conditions of employment. The first was Reed’s testimony that “the work orders that [he] went out on were beginning to be increasingly of the meters burning up and burning up the meter bases.” Oncor II, 887 F.3d at 493–494. In relying on this part of Reed’s testimony, my colleagues assert that it raised the issues of “an increase in work orders relating to smart meters and customer complaints directed to work- ers.” But, to the extent that my colleagues are asserting that there was an actual increase in Reed’s work orders, that assertion is not an accurate representation of Reed’s actual testimony. The testimony relevant to this issue was: Reed: What I came to testify about today is, when they started installing the [smart] meters, I noticed that the tickets that I worked on or the work orders that I went out on were beginning to be increasingly of the meters burning up and burning up the meter basis. Reed’s testimony only established that Reed noticed that a higher percentage of his service calls were related to meters burning up after the installation of the smart 9 Although my colleagues also mention that Reed’s testimony indi- cated that the smart meters “posed a risk to workers,” the court expressly found that Reed’s “testimony [made] no mention of worker hazards.” In meters. His testimony in no way stated that he was re- sponding to more numerous service calls. Further, Reed did not testify that this shift in the nature of the work orders to which he responded had any negative repercussions whatsoever on his terms and conditions of employment. He did not testify, for example, that service calls pertaining to meters burning up were more onerous than other types of service calls. Nor did he testify that, because more of his service calls were dealing with smart meters burning up, he was having to work longer hours. Although my colleagues dispute my contention that this testimony was “neutral” as regards Reed’s terms and con- ditions of employment, that is exactly what it was. Next, my colleagues assert that Reed’s testimony raised the issue of “customer complaints directed to workers.” The testimony on which they rely is: Reed: And when I go to a low income house where this lady comes out, this elderly woman that’s a widow woman and she says, you know, “What’s the problem?” And I said, “Well, your meter burnt up, and it’s your equipment and you have to pay for the repairs before you can get your lights back on.” And she tells me, “Well, I’ve been living here for 45 years, and I’ve never had a problem until they installed that meter.” And that just has happened a lot. Again, nothing in this testimony suggests that Reed received customer complaints “directed to workers.” It is clear that his testimony indicated that customers had told Reed that they were facing a new problem--their electrical meters burning up--that they had not faced before. But Reed’s testimony in no way established that customers were unhappy with em- ployees or otherwise taking out any frustrations on employ- ees. Reed did not testify, for example, that any customer had raised their voice or otherwise become combative with him as a result of the smart meters burning up. Rather, at most, Reed’s testimony established that, in the presence of employ- ees, customers were complaining about the smart meters burning up and possibly about having to pay for repairs to their properties themselves. Nothing in his testimony indi- cated that Reed’s terms and conditions of employment had been negatively affected by the smart meters failing, let alone that he was referring to an ongoing labor dispute.9 Finally, my colleagues assert that Reed “stated [in his testimony] that he had contacted another union local to discuss the impact of smart meters.” That, however, is not an accurate characterization of Reed’s hearing testimony: Reed: [W]hen I started noticing [the increase of service calls involving smart meters burning and customers addition to being true, the court’s finding in this regard is the law of the case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 indicating that they had not experienced that before]10 I called the union there in Houston and asked them if they were experiencing the same thing. And he told me he would go by the meter shop that next day and then call me. And he called me the next day and said that they are experiencing a significant increase in the meters being turned in that are burnt up from the old analog meters to now, the AMS meter. Reed’s testimony did not indicate that he contacted the union in Houston “to discuss the impact of smart meters.” Rather, Reed testified that, in light of what he had been experiencing with regard to smart meters failing, he con- tacted the union in Houston to inquire whether they were “experiencing the same thing” in Dallas. Further, Reed’s testimony did not indicate that any discussion about the “impact” of smart meters actually took place; his testi- mony did not reference any discussion of the “impact” of smart meters on customers’ homes, nor did it reference any discussion of the “impact” of smart meters on employ- ees’ terms and conditions of employment. Finally, and notably, Reed’s testimony established that the Houston lo- cal itself did not understand Reed’s inquiry to be raising the issues that my colleagues suggest.11 The local union’s response did not contain any reference whatsoever to em- ployees’ terms and conditions of employment or any on- going labor dispute. Rather, according to Reed’s testi- mony, the local union only reported that, according to the “parts shop” in Houston, there had been an increase in burned meters being turned in.12 Accordingly, in finding that the Respondent violated the Act by discharging Reed as a result of his disparagement of its products, my colleagues are in effect finding that, so long as the disparaging comments contain any reference whatsoever to employees’ terms and conditions of em- ployment or inter-local communications or, really, any reference to the union, the first prong of the Jefferson Standard test is satisfied. Because I vehemently disagree with this interpretation of the test, my colleagues do not 10 Reed’s testimony merely referred to “this” here, and it is not clear from the context in which the statement was made what he meant by “this.” Based on my reading, I believe that Reed was referring to his prior testimony that he had experienced an increased percentage of ser- vice calls related to smart meters burning at which customers often ex- pressed that it had never happened before. 11 And if the local union did not understand Reed’s inquiry to be ref- erencing an ongoing labor dispute, it is not clear to me how attendees of a hearing addressing whether smart meters pose a “public health” threat would interpret his testimony that way. 12 Any speculation that the Houston local failed to mention an ongoing labor dispute because the representative there assumed that Reed was making the inquiry in the context of an ongoing labor dispute is neither supported by record evidence nor suggested by Reed in his testimony. 13 I do not question the motivation behind this view; it seems likely that my colleagues believe that the Act should allow employees to put accurately represent my position when they assert that this is “simply a situation in which [the majority members and the dissenting member] have looked at the same caselaw and disagree as to its application.” VII. MY COLLEAGUES’ INTERPRETATION OF THE JEFFERSON STANDARD TEST IS FATALLY FLAWED It is not difficult to summarize my colleagues’ position: they do not believe that the first prong of the Jefferson Standard test adequately protects employees’ ability to disparage their employer to third parties without fear of repercussion.13 As a result, they implicitly take the novel position that the Jefferson Standard requirements need not be interpreted literally, thereby in effect eviscerating that standard and replacing it with a new standard. To begin, in finding a violation here, my colleagues ap- pear to change Board law so that the General Counsel does not need to find that Reed’s testimony was linked to a particular ongoing labor dispute in order to find that the testimony was protected.14 Given the court’s decision as well as the scant record evidence of any ongoing labor dis- pute regarding smart meters, my colleagues opt for vague explanations such as that the committee would have un- derstood that Reed had “particular interests that [he sought] to advance.” But “particular interests” are not a labor dispute. They further state that “when [a union] rep- resentative’s testimony conflicted with the public position of the employer, a labor dispute between the union and the employer was likely implicated.” Beyond the fact that I question the veracity of that assumption, the Jefferson Standard test has never merely required that the listener might be able to conclude the existence of a labor dispute by virtue of the fact that the employee disparaging the em- ployer was a union representative. This is new law, and my colleagues cannot cite a single case in which the Board has so held. Nor can they cite to any suggestion in the Jefferson Standard decision that would support that view. In fact, as noted above, some of the flyers at issue in Jef- ferson Standard were handed out on a picket line, but the economic—and public—pressure upon employers to the greatest degree possible. The problem, however, is that the Supreme Court decided this issue in Jefferson Standard, establishing that employees do not engage in concerted activity protected by the Act when they make disparaging comments about their employer without adequately informing the lis- tener of the relationship between those comments and a labor dispute. 14 Although my colleagues’ note that a labor dispute existed, their rea- soning does not support that conclusion. For example, my colleagues assert that “the Union had an ongoing concern about the safety of the meters.” They do not, however, explain how this “concern” manifested into an ongoing labor dispute. Their suggestions that a supervisor was “aware that the smart meters were [heating up and burning]” and that the Respondent was aware that the legislature had concerns about the safety of smart meters does not establish that this issue had become a dispute between the Respondent and its employees with regard to terms and con- ditions of employment. ONCOR ELECTRIC DELIVERY CO., LLC 15 Court did not give any indication that the act of handing out the offending flyers on a picket line was in any way different from handing them out to businesses in the com- munity. The Court’s decision clearly focused on the sub- ject matter of the flyer, not on who had handed out the flyers at issue. Next, they take the position that, in analyzing disparag- ing comments under Jefferson Standard and its progeny, the Board should not require a connection to an ongoing labor dispute but, rather, any connection to an employees’ terms and conditions of employment. In that vein, they assert that “Reed limited his testimony to his direct knowledge of smart meters and his significant experience working with them” and that “[h]e specifically addressed how working conditions had changed since the installation of the new meters.” This, of course, fails to identify any ongoing labor dispute.15 However, even if we assume that Reed’s testimony that smart meters had been damaging customers’ homes at a hearing specifically pertaining to the safety of smart meters to the general public was raising concerns about his terms and conditions of employment, this is not, nor ever has been, sufficient to satisfy the first prong of the Jefferson Standard test. My colleagues can- not cite to a single case where the Board has found that the Jefferson Standard test was satisfied simply because the communications at issue referenced terms and conditions of employment.16 I note that my colleagues cite to Xcel Protective Ser- vices, 371 NLRB No. 134 (2022), in support of their view that the first prong’s requirement that the communication indicate a connection to a labor dispute “is not onerous” and that “[e]mployees need only provide enough infor- mation about the existence of a labor dispute to allow third parties to ‘filter the information critically’ when they ap- peal to those third parties for support.” My colleagues, 15 In fact, as discussed above, Reed’s testimony did not even suggest that his terms and conditions of employment had been negatively af- fected by the fact that smart meters had caused damage to customers’ homes. For example, he did not testify that he was being sent on more service calls, or that the service calls were more difficult or required him to work a longer day. Rather, he testified that a greater number of his service calls were based on smart meter problems. Similarly, although he testified about a disgruntled customer, he did not testify that he was experiencing a greater number of disgruntled customers than usual as a result of the smart meter problems. This fact has no bearing on the analysis of this case—the Board has never found that the Jefferson Standard test was met simply because an employee’s disparaging remarks included the negative effects on his terms and conditions of employment—but rather is meant to demonstrate how broad and unprecedented my colleagues’ position is. 16 In fact, my colleagues do not even attempt to proffer cases that ac- tually support the novel legal standard they promulgate today. Rather, they engage in an analytical fallacy to reach their conclusion that Reed’s testimony should be viewed as protected by the Act. Specifically, my colleagues cite (some) relevant cases to our inquiry but then, rather than however, fail to note that, in Xcel, the communications at issue were related to an actual ongoing labor dispute.17 In that case, the employees had collectively discussed their workplace safety concerns arising from their employer’s failure to follow Navy protocols in administering and cer- tifying weapons testing. One of the employees then di- rectly informed their employer of their workplace safety concerns. For instance, the employer was informed that “someone [in the workplace] could have gotten hurt from a ricochet . . . [or an] accidental discharge [of the fire- arms].” After failing to obtain a satisfactory response from the employer, employees collectively raised their concerns with the commanding officer at the naval base at which the Respondent was a contractor. Thus, the communication at issue in Xcel arose from a collective action by a group of employees who were in- volved in a clear dispute with their employer regarding concerns about their personal safety as employees work- ing at the naval base. The Board specifically found that the communication referenced this specific dispute when it “directly and explicitly informed Navy leadership . . . that [employees] believed that the [r]espondent’s failure] to comply with [safety regulations] . . . compromised [em- ployees’] safety both at the range and while on guard duty.” Xcel, 371 NLRB No. 134, slip op. at 4; see also id., slip op. at 5 (finding that the communication established a “nexus” to employees “dispute with the Respondent”). Accordingly, Xcel does not support my colleagues’ novel position that communications can satisfy the first prong of the Jefferson Standard test without establishing a nexus between the subject matter of those comments and an ac- tual ongoing labor dispute.18 My colleagues also cite the Board’s decision in Endicott Interconnect Technologies, 345 NLRB 448, 450 (2005), enf. denied, 453 F.3d 532 (D.C. Cir. 2006). To begin, apply the actual facts of those cases, they draw vague conclusions from them. They then decide that, based on those vague conclusions, extant caselaw supports their position. As I’m sure my colleagues understand, just because one could categorize doughnuts as a round breakfast item does not mean that all round breakfast items are doughnuts. 17 I note that in distinguishing Xcel from the instant case, I am not taking a position regarding whether the Board’s decision in that case was correctly decided. I also note that no court has enforced Xcel, nor has any court issued a case in which the application of Jefferson Standard considers whether the communication references “terms and conditions of employment” rather than, as expressly stated in the Jefferson Standard test, “an ongoing dispute between the employee and the employers . . . .” Mountain Shadows, 330 NLRB at 1240 (emphasis added). 18 The court found that the Union had a “longstanding concern over smart meters’ effect on employment.” Oncor II, 887 F.3d at 496. This concern apparently had to do with the fact that the smart meters had led to layoffs in the past. If I am reading the court’s decision correctly, I accept that finding as the law of the case. Nevertheless, as the court found, nothing in Reed’s testimony could be viewed as referencing the fact that smart meters could lead to job loss. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 because the case before us is on remand from the D.C. Cir- cuit, I do not believe that the Board can ignore the fact that the D.C. Circuit vacated and denied enforcement in En- dicott in full, both finding that the Board had erroneously found that the second prong of the Jefferson Standard test had been met and, by a majority, declining to reach the issue of whether the Board’s correctly found that the first prong of the test was satisfied.19 Put another way, the court did not express agreement with any aspect of the Board’s application of the Jefferson Standard test. Alt- hough the Board generally applies the principle of nonac- quiescence in deciding cases, because the Board does not know what circuit law will be applicable to most cases that it issues, here the Board knows that this case will end up back before the D.C. Circuit.20 Accordingly, I believe that my colleagues err in relying on that case. Regardless, Endicott is clearly distinguishable from this case.21 One of the communications at issue in Endicott was a newspaper article written about the employer’s ac- quisition of a local manufacturing facility and its subse- quent permanent layoff of 200 employees, about ten per- cent of the facility’s workforce. The employee communi- cation at issue was published in a newspaper article pre- senting opposing employee and management positions re- garding the permanent layoffs. Accordingly, at the time the employee answered the reporter’s questions about the layoffs, he was unquestionably making statements con- nected to the layoffs, which were a labor dispute between the parties. The way in which the reporter chose to include the employee’s comments in the published article was not within the employee’s control, nor is it clear whether the employee’s statements—if they had been included in full along with the reporter’s questions—would have specifi- cally referenced the layoffs. The second communication, made on a website maintained for discussing the effects of the respondent’s acquisition, similarly involved the re- spondent’s permanent layoffs and the union’s role—or lack thereof—in protecting employees’ jobs.22 19 In fact, the only judge to reach the issue, Judge Henderson, found that the communications at issue failed to satisfy the first prong as well. Endicott, 453 F.3d at 538 (J. Henderson, concurring). Given the fact that the court vacated the Board decision in full, and that there is nothing in the decision to suggest that the court in any way approved of the Board’s analysis or determination that the first prong was met, I do not see how my colleagues’ assertion that “there is no reason” not to rely on Endicott can be taken seriously. 20 Numerous circuit courts of appeal have, over the years, addressed the Board’s nonacquiescence policy. See Ayuda v. Thornburgh, 880 F.2d 1325, 1330 fn. 4 (D.C. Cir. 1989) (discussing but not deciding among conflicting views in the courts of “intracircuit nonacquiescence” policies adopted by some federal agencies, with emphasis on NLRB de- cisions) (collecting cases and secondary sources); NLRB v. A. Duie Pyle, Inc., 730 F.2d 119, 128 (3d Cir. 1984) (criticizing the Board’s My colleagues raise additional bases for their analysis that are hardly worth addressing. They assert that because Reed had reached out to the Houston local, that establishes the existence of a labor dispute. It does not; the dispute must be between the employer and the employees. The fact that two locals may have been talking about an issue does not establish that the employer was involved in any dispute. My colleagues also assert that, because Reed was testifying before a committee, those state legislators could “reasonably . . . be expected to infer that a self-identified union representative was testifying to advance the union’s interests . . . .” But the sophistication—or lack thereof— of the audience has never been considered in determining whether the first prong of the Jefferson Standard test has been satisfied; the focus is, and always has been, on what is actually said in the disparaging communications at is- sue. Therefore, by finding that this is a relevant consider- ation, my colleagues are applying a new standard. How- ever, my colleagues’ application of that consideration to this case fails to support their finding. The record estab- lishes that the hearing at which Reed spoke was a public hearing. Therefore, it would have been the General Coun- sel’s burden to establish that the only persons hearing Reed’s testimony were similarly “sophisticated” with re- gard to interpreting that testimony. The General Counsel did not establish that here. Finally, my colleagues assert that the fact that “Reed’s testimony was limited to two minutes, and that, during this time, a senator also asked him two questions,” supports their finding that his dispar- aging comments were protected by the Act. With all due respect, even assuming that, given more time, Reed would have made reference to an as yet unidentified ongoing la- bor dispute, that is entirely irrelevant for determining whether the first prong of the Jefferson Standard test was met. Precedent, as well as the language of the test itself, clearly establishes that analysis of the first prong turns on how an audience would interpret the disparaging com- ments in light of what was said, not what the speaker might have said. nonacquiescence where, “[r]ather than follow our [controlling prece- dent], the Board attempted to distinguish it”); Ithaca College v. NLRB, 623 F.2d 224, 228 (2d Cir. 1980) (calling Board’s “consistent practice of refusing to follow the law of the circuit unless it coincides with the Board’s views. . . . “intolerable”), cert. denied, 449 U.S. 975 (1980). 21 I note that in distinguishing Endicott Interconnect from the instant case, I am not taking a position regarding whether the Board’s decision in that case was correctly decided. 22 Another case upon which my colleagues rely, Gross Electric, Inc., 366 NLRB No. 81 (2018), was not a Jefferson Standard case and in- volved no public disparagement. In that case, the union president en- gaged in protected criticisms of management and its hiring practices dur- ing a grievance meeting. It is not at all clear how that case has any rele- vance whatsoever to the issue before us. ONCOR ELECTRIC DELIVERY CO., LLC 17 Finally, I note that my colleagues’ position that the overall context of Reed’s testimony should be sufficient to satisfy the requirements of Jefferson Standard has already been implicitly rejected by the court, which was cognizant of the overall context of Reed’s testimony in deciding to remand the case. The court noted that “[t]he Board sug- gests [in its brief] that in [the context of a “years-long” labor dispute over the deployment of smart meters], plus Reed’s identifying himself with the union and his testify- ing about smart meters, the legislators would recognize that the Union and [the Respondent] were engaged in a labor dispute regarding smart-meter deployment, and that Reed was at the hearing to represent the Union’s side of the dispute.” Id. at 496. This, of course, is basically the same rationale being presented by my colleagues today. However, in its decision, the court found “very little indi- cation of significant union lobbying on smart meters” that would have put the committee on notice of this alleged la- bor dispute, and expressed serious doubt that the argument that Reed’s self-identification and the subject matter of his testimony were sufficient to meet the first prong of the Jef- ferson Standard test. Id. VIII. CONCLUSION The court has directed us on remand to address the first prong of Jefferson Standard by explaining whether and how Bobby Reed indicated to the senate committee that he was disparaging his employer’s product in the context of a labor dispute—that is, a “dispute between the em- ployees and the employer[].” 887 F.3d at 492. In response to the remand order, my colleagues attempt to redefine the terms of Jefferson Standard so that a labor dispute may be inferred when an employee disparages the employer and makes any reference to working conditions and/or the un- ion, even a reference as oblique as a customer stating that she had been living at her home for 45 years and “never had a problem until they installed that meter.” I do not believe that by proposing and applying a new interpreta- tion of Jefferson Standard my colleagues have either acted consistently with that decision or satisfied the court’s or- der on remand. First, as explained above, my colleagues’ redefining of Jefferson Standard as an inference-based test that does not require the speaker to directly indicate a labor dispute is without support in that decision or subse- quent case law applying it. Second, my colleagues’ anal- ysis relies on characterizations of Reed’s testimony that simply do not reflect his actual testimony. Third, the fac- tors that my colleagues rely on to contend that Reed did in fact provide sufficient information for the committee to infer a dispute are the same factors that the court rejected; the only difference is that now, under my colleagues’ ver- sion of the standard, these factors should establish that Reed’s testimony was indeed protected. Fourth, I do not believe that the inference-based analysis that my col- leagues propose comes anywhere near the clarity the Su- preme Court contemplated in Jefferson Standard. As the Court there emphasized, “[t]here is no more elemental cause for discharge of an employee than disloyalty to [a person’s] employer,” 346 U.S. at 472. I do not believe that it contemplated requiring an employer to tolerate dispar- aging attacks on its services from the very employees it entrusts to provide them, absent an indication in the re- marks themselves sufficient to notify the listener that the disparagement was made in the context of a labor dispute. To my colleagues, however, such clarity is unnecessary. Rather, they find that those present at the hearing before a committee specifically tasked with considering the effects of smart meters on the public would have been able to in- fer some sort of dispute between employees and the em- ployer based on how Reed identified himself and the fact that his testimony mentioned the effect of smart meters on customers. As I explain above, I do not believe that such an inference, or my colleagues’ reinterpretation of Jeffer- son Standard to permit it, satisfies the requirements of that standard or the court’s direction on remand. Accordingly, I respectfully dissent. Dated, Washington, D.C. July 26, 2024 ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT discharge or otherwise discriminate against you for supporting the International Brotherhood DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 of Electrical Workers, Local Union No. 61, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of this Order, offer Bobby Reed full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make Bobby Reed whole for any loss of earn- ings and other benefits resulting from his unlawful termi- nation, less any net interim earnings, plus interest, and WE WILL also make him whole for any other direct or foresee- able pecuniary harms suffered as a result of the unlawful termination, including reasonable search-for-work and in- terim employment expenses, plus interest. WE WILL make affected employees whole for any loss of earnings, including a decrease in extra-room bonus earnings, and other benefits suffered as a result of our un- lawful unilateral changes, plus interest. WE WILL compensate Bobby Reed for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 16, within 21 days of the date the amount of back- pay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years. WE WILL file the Regional Director for Region 16, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s corresponding W-2 forms reflecting the backpay awards. WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful dis- charge, and within 3 days thereafter, notify the employee in writing that this has been done and that the discharge will not be used against him in any way. ONCOR ELECTRIC DELIVERY COMPANY, LLC The Board’s decision can be found at https://www.nlrb.gov/case/16-CA-103387 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.