A federal appeals court panel has concluded that the National Labor Relations Board misapplied precedent by treating an employee’s disparaging remarks as protected even though the employee did not identify a connection to a labor dispute. Section 7 of the National Labor Relations Act did not protect the speech because the testimony lacked that disclosure, the U.S. Court of Appeals for the D.C. Circuit held April 28 in Oncor Electric Delivery Company v. NLRB. The decision could face review by the full D.C. Circuit or by the Supreme Court.
Oncor concerned an employee who was a union representative who testified at a legislative hearing during a labor dispute about problems with his employer’s products. This ruling is a reminder that the NLRA does not protect all employee speech as concerted activity, even when made by a union representative. An employee’s criticism about working conditions or management actions is more likely to be considered dispute-related and therefore protected than employee speech disparaging the employer’s products or services when the speaker does not clearly tie the remarks to an ongoing labor dispute.
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