Appeals Court Rejects NLRB’s Finding That Disparaging Public Testimony Was Protected

May 4, 2026

What's New

In Oncor Electric Delivery Company, LLC, v. NLRB, the U.S. Court of Appeals for the District of Columbia held that the National Labor Relations Board (NLRB) misapplied precedent by treating an employee’s disparaging remarks as protected even though the employee did not identify a connection to a labor dispute. Because the testimony lacked that disclosure, it was not protected by Section 7 of the National Labor Relations Act (NLRA). The decision could still face further review by the full D.C. Circuit or Supreme Court.

What It Means

Not all employee speech—even by a union representative—qualifies as protected concerted activity. Product and service disparagement may fall outside the NLRA when the speaker does not clearly tie the remarks to an ongoing labor dispute. Criticism framed around working conditions or management actions is more likely to be treated as dispute related and thus protected.

What You Should Do

Employers should:

• Review disparagement, media, and confidentiality rules with counsel recognizing that NLRA coverage is fact specific.
• Assess whether disparaging speech focuses on products or services, as opposed to working conditions or management which are more likely to implicate NLRA protections.
• Train managers to escalate discipline tied to employee speech for legal review before acting.

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