The U.S. Court of Appeals for the District of Columbia Circuit has refused to enforce the NLRB’s order finding that an employee’s discharge violated the National Labor Relations Act because the Board did not satisfy the Supreme Court’s two-prong Jefferson Standard test for determining whether an employee’s disparaging statements to third parties about his employer are protected. Oncor Electric Delivery Co. v. NLRB, No. 16-1278 (D.C. Cir. Apr. 13, 2018). The Court remanded the case to the NLRB for a re-examination and a thorough explanation of its decision.

The Supreme Court in Jefferson Standard, 346 U.S. 464 (1953), which later was followed by the NLRB and other court cases, ruled that employee public attacks on the quality of the employer’s products, services, or operations are protected by the NLRA when they are made in furtherance of a union’s position in a labor dispute. The public comments must (1) indicate that they are being made as part of a labor dispute and (2) not be extremely disloyal, reckless, or maliciously untrue.

In this case, the employee, who also served on his union’s negotiating committee, repaired and serviced “smart meters” at residential and commercial sites of utility users. The union and the employer had a history of disagreement over the increased use of the smart meters, primarily because this would reduce the need for employees to read meters, and therefore eliminate some union-represented jobs.

The union and the employer were deadlocked in collective bargaining negotiations, particularly over the length of a new agreement. The employee gave the employer an ultimatum: agree to the union’s demands, or he would voluntarily appear before a state senate committee hearing on whether smart meters had harmful effects on public health. The employer did not agree.

In his brief testimony before the committee, the employee identified himself as a union member and said he was personally handling an increasing number of work orders where the smart meters had burned up and burned the meter bases as well. He concluded that “these things are causing damage to people’s homes.” The employee did not reveal the ongoing contract dispute.

The employer reviewed the employee’s service call records, concluded that his testimony was false, and fired him. The NLRB administrative law judge and the Board ruled that the employee’s statements were protected and that his discharge violated the NLRA.

The Court explained that the first Jefferson Standard requirement is important so the audience can take this into account when assessing the employee’s credibility. The NLRB did not explain how this requirement was satisfied and the Court doubted whether the requirement could be satisfied under the record in the case. The Court also ruled the NLRB had to clearly take a position on which party has the burden of proof on the two requirements for NLRA protection — the General Counsel or the employer.

Public attacks on the quality of an employer’s products and services as leverage in labor disputes is a regular union tactic. Employers faced with this situation should carefully determine whether the employee referred to the labor dispute when uttering the disparaging remarks, as well as whether the remarks were disloyal, or recklessly or maliciously untrue. The NLRB historically has given employees the benefit of the doubt in such cases.

 

 

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.