Andrew Strom, adjunct professor at Brooklyn Law School and contributor to the OnLabor blog at Harvard Law School, joined the America's Work Force Union Podcast for a look at a D.C. Circuit Court decision that stripped a 34-year utility worker of his National Labor Relations Act protections — for testimony he gave before the Texas State Senate in 2012.
The case of Bobby Reed, a member of IBEW Local 69, wound through the courts for 13 years. During that time, the worker won twice before the National Labor Relations Board, only to have the D.C. Circuit overturn both decisions by applying what Strom called a reckless expansion of a deeply flawed 1953 Supreme Court precedent. The ruling, Strom said, is a stark reminder that labor law in America was designed to protect workers — and has long since drifted from that purpose.
Andrew Strom has spent years chronicling how American labor law fails the workers it was designed to protect. The case he brought to the America's Work Force Union Podcast this month may be one of the clearest illustrations yet — a story that spans 13 years, two NLRB victories, a global pandemic and a final court ruling that left a 34-year worker with nothing.
Bobby Reed spent more than three decades working for an electric utility company, including serving as the lead negotiator for IBEW Local 69. In October 2012, with contract talks ongoing, he traveled to Austin to testify before the Texas State Senate about a safety issue he had documented firsthand: smart meters and the bases they connected to had caught fire 27 times. Reed himself had suffered second-degree burns on the job from one such incident. He knew the risk was real.
He testified for two minutes and laid out the facts as he understood them. However, he did not add a sentence stating that his employer and his union were currently at the bargaining table.
In early 2013, Reed was fired.
To understand why that omission mattered legally, Strom walked through the Jefferson Standard doctrine — a 1953 Supreme Court decision that haunts labor law to this day. The case involved technicians at a Charlotte, N.C., television station who, during a contract dispute, distributed leaflets to the public criticizing the station for airing reruns rather than producing local programming. The leaflets were signed by the technicians but made no mention of the ongoing labor dispute.
The Supreme Court ruled that workers who disparage their employer's product without disclosing an active labor dispute lose the protections of the National Labor Relations Act. The logic, thin as it was, rested on a public disclosure rationale: people receiving those leaflets on the street had no way of knowing the criticism was coming from workers with a financial stake in the outcome. The court also held that workers lose NLRA protection if their statements are so disloyal, reckless or maliciously untrue as to fall outside protected activity.
Strom noted the obvious inequity baked into the doctrine from the start: employers have never been required to disclose their financial interests when they issue advertising or public statements. The duty of loyalty runs in only one direction.
The NLRB, both the administrative law judge and the board itself, rejected the company's application of Jefferson Standard to Reed's case. Their reasoning was straightforward: a state legislature is not a street corner. When someone travels to a state capitol, waits hours for their two minutes and testifies before a Senate committee, no one in that room believes they are a disinterested expert with nothing to gain. Reed identified himself as a union member. The senators were not deceived. They knew exactly who he was and why he was there.
The D.C. Circuit disagreed. In a decision issued last week in the case now known as Encore Electric Delivery Company, the court ruled that Reed's failure to explicitly state that contract negotiations were underway at the time of his testimony stripped him of NLRA protection. The opinion was written by one of the court's most conservative appointees, but was joined by two Democratic appointees on the panel. Strom said, this decision cannot be attributed entirely to partisan judicial philosophy.
The administrative record showed that Reed's testimony was not fabricated. The fires were real. The 27 incidents were documented. His description of the problem was somewhat imprecise, as the root cause of the fires turned out to be the connection between the meters and the bases rather than the meters themselves. However, the administrative law judge found that imprecision fell well short of the reckless or maliciously untrue standard required to strip a worker of protection. The NLRB agreed, but the D.C. Circuit did not.
Strom was unsparing in his assessment. Reed waited 13 years for a final answer. He won at every level of the administrative process. He lost in court twice: first in 2018, when the D.C. Circuit sent the case back for more analysis, and now definitively, as the court overturned the board's second ruling. The legal doctrine that undid him was already widely criticized as a misreading of the NLRA's intended purpose. Applied to legislative testimony, Strom said, it becomes something close to absurd.
The practical consequence is that a worker can give truthful — or substantially truthful — testimony before a state legislative body about a genuine workplace safety hazard, be fired for it, spend more than a decade fighting for reinstatement, win twice before the agency charged with protecting him and still end up with nothing. Strom noted that Reed, who had 34 years of service when he was fired 13 years ago, may well have retired by now. The remedy, even if it had ultimately been granted, would have arrived far too late to matter in any practical sense.
The path forward is effectively closed. Appealing to a Supreme Court that currently has six Republican appointees, Strom said, offers no realistic prospect of a different outcome. The decision stands. The Jefferson Standard doctrine has now been extended in a way that leaves workers who engage in public civic life, including testifying before their own elected representatives about workplace safety conditions, without meaningful federal protection.
More analysis from Andrew Strom is available at the OnLabor blog at onlabor.org.
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