United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 5, 2017 Decided April 13, 2018

No. 16-1278

ONCOR ELECTRIC DELIVERY COMPANY LLC,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

INTERNATIONAL BROTHERHOOD OF ELECTRICAL 

WORKERS, LOCAL UNION NO. 69,

INTERVENOR

Consolidated with 16-1341

On Petition for Review and Cross-Application 

for Enforcement of an Order of 

the National Labor Relations Board

David C. Lonergan argued the cause for petitioner. With 

him on the briefs were Robert T. Dumbacher and Amber M. 

Rogers.

David Casserly, Attorney, National Labor Relations 

Board, argued the cause for respondent. With him on the brief 

were Richard F. Griffin, Jr., General Counsel at the time the 
2

brief was filed, John H. Ferguson, Associate General Counsel, 

Linda Dreeben, Deputy Associate General Counsel, and Kira 

Dellinger Vol, Supervisory Attorney.

Hal K. Gillespie argued the cause and filed the brief for 

intervenor.

Before: MILLETT and PILLARD, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

WILLIAMS, Senior Circuit Judge: The National Labor 

Relations Act (the “Act”) protects the right of employees to 

“engage in . . . concerted activities for the purpose of collective 

bargaining or other mutual aid or protection.” 29 U.S.C. § 157. 

Under some circumstances those protected activities include

employee appeals to third parties standing “outside the 

immediate employee-employer relationship.” Eastex, Inc. v 

NLRB, 437 U.S. 556, 565 (1978). 

But the protection of the Act is no bar to dismissal for 

“cause,” 29 U.S.C. § 160(c) (i.e., a cause independent of 

protected activity), and, as the Supreme Court said in the case 

now known generally as Jefferson Standard, “There is no more 

elemental cause for discharge of an employee than disloyalty 

to [a person’s] employer.” NLRB v. Local Union No. 1229, 

Int’l Board of Elec. Workers, 346 U.S. 464, 472 (1953). Since 

then, we have interpreted the practices of the National Labor 

Relations Board, read in the light of Jefferson Standard, to have 

“formulated a two-prong test for assessing whether employees’ 

third-party appeals constitute protected concerted activity or 

instead amount to ‘such detrimental disloyalty’ as to permit the 

employees’ termination for cause.” DirecTV, Inc. v. NLRB, 

837 F.3d 25, 34 (D.C. Cir. 2016). Under the test, even 
3

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 disloyal, reckless or maliciously 

untrue as to lose the Act’s protection,” id. (citing American 

Golf Corp., 330 NLRB 1238, 1240 (2000) (Mountain Shadows 

Golf)); see also Endicott Interconnect Tech., Inc. v. NLRB, 453 

F.3d 532, 537 (D.C. Cir. 2006) (finding that Mountain Shadows 

Golf “accurately reflects the holding in Jefferson Standard”). 

The purpose of the first condition, disclosure to the audience of 

the disparaging assertions, is of course to enable the recipients 

to evaluate the statements in a fuller context, applying what the 

listener or reader regards as a suitable discount or enhancement. 

Jefferson Standard, 346 U.S. at 477; see also DirecTV, 837 

F.3d at 35 (“[T]hird parties who receive appeals for support in 

a labor dispute will filter the information critically so long as 

they are aware it is generated out of that context.” (quoting 

Sierra Publ’g Co. v. NLRB, 889 F.2d 210, 217 (9th Cir. 1989)). 

Oncor Electric Delivery Company petitions for review of 

the Board’s decision that it engaged in unfair labor practices by 

discharging its employee, Bobby Reed, for making false or 

disparaging statements during two minutes of testimony before 

a Texas senate committee. Oncor argues that the Board 

misapplied the Jefferson Standard test. As the Board’s 

decision essentially skipped discussion of the first requirement 

for its application, we remand the decision for further 

consideration. 

We “must uphold the judgment of the Board unless, upon 

reviewing the record as a whole, we conclude that the Board’s 

findings are not supported by substantial evidence, or that the 

Board acted arbitrarily or otherwise erred in applying 

established law to the facts of the case.” Tenneco Auto., Inc. 

v. NLRB, 716 F.3d 640, 646–47 (D.C. Cir. 2013) (internal 

citation and quotation marks omitted). Of course the Board 
4

enjoys no special deference in the interpretations of decisions 

of the Supreme Court (or, indeed, of other courts). See New 

York New York, LLC v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 

2002).

Even under that deferential standard, we find the Board’s 

reasoning in this case too opaque to resolve whether it is 

supported by substantial evidence. We therefore grant the 

petition in part and remand to the Board to make clear its 

principles for affording protection to employees’ disparaging 

appeals to third parties; “[T]he orderly functioning of the 

process of review requires that the grounds upon which the 

administrative agency acted be clearly disclosed and 

adequately sustained.” SEC v. Chenery Corp., 318 U.S. 80, 94 

(1943). Oncor raises other challenges, including its dispute 

with the Board over Oncor’s production of documents and its 

contention that the Board’s General Counsel was without 

authority to issue the complaint; we reject these arguments. We 

thus grant the petition in part and deny in part, and we remand 

to the Board for further clarification.

* * *

The main dispute in this case arises from an October 2012 

hearing before a Texas senate committee tasked with 

“[s]tudy[ing] whether advanced meters, or smart meters, that 

have been, and will be, installed in Texas have harmful effects 

on [public] health.” Joint Appendix (“J.A.”) 443, 444–45. In 

2008 Oncor had begun installing smart meters—essentially 

digital metering devices that can report customers’ electricity 

usage remotely, thereby eliminating the need for personal 

inspection and the associated labor costs. By the time of the 

legislative committee hearing, Oncor had installed over 3 

million smart meters. 
5

Bobby Reed volunteered to testify at a hearing held on 

October 9. He was an Oncor “trouble man” who completed ad 

hoc repair jobs and responded to power outages. Since April 

2011, he had also been the business manager and financial 

secretary for the International Brotherhood of Electrical

Workers, Local 69. Reed signed the committee’s witness list 

as representing “(Self; IBEW Local 69), Dallas, TX,” and 

indicated he would testify “on” smart meters, rather than “for” 

or “against.” J.A. 451. He was allotted two minutes.

During his brief testimony, Reed said he represented the 

local union in Dallas and had consulted its equivalent 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.” J.A. 14. Reed reiterated that this

occurrence was becoming more frequent, and had begun “when 

they started installing the AMS [Advanced Metering System, 

or smart] meters.” Id. When asked by a senator whether the 

burning could be attributed to the power line, Reed was 

emphatic, “No, it’s the meter.” Id. Reed made two arguable 

referencesto working conditions. First, he testified to receiving 

repair orders or damaged boxes after the meters had burned. 

There was no mention of employees’ encountering fires, 

electrical arcs, or other live hazards while servicing the meters. 

Second, his testimony focused on his experience with 

disgruntled customers. He spoke of an “elderly woman,” a 

widow, who had been told by Oncor that she would have to pay 

for the damage herself before her power could be turned back 

on. Id. Reed concluded that he did not “know much about 

[radio] frequency [a topic raised earlier in the hearing], but I do 

know a little bit about fire and heat, and these things are causing 

damage to people’s homes.” Id.

The day after Reed’s testimony, Oncor initiated an 

investigation to verify whether the company had received 

complaints of smart meters causing fires and damaging 
6

consumers’ homes. Concluding that Reed’s testimony was 

false, Oncor terminated his employment on January 14, 2013, 

for Reed’s having given “false testimony.” J.A. 1555. After a 

seven-day trial, an administrative law judge held that the 

discharge violated § 8(a)(3) and (1) of the Act for interfering 

with Reed’s protected union activities. The Board affirmed.

* * *

We first clear out of the way an Oncor argument that 

Reed’s testimony was not “for the purpose of collective 

bargaining or other mutual aid or protection,” a fundamental 

prerequisite of protection under § 7 of the Act. Reed informed 

Oncor that he would testify to the senate committee if the union 

did not reach a favorable result in the collective bargaining then 

going on between the union and Oncor. Reed then testified the 

next day and signified both on the witness list and in his 

remarks that his testimony was on behalf of the union. We will 

return to the collective bargaining shortly, as it plays a role in 

the Board’s contention that Reed’s message to the committee 

qualified for protection under Jefferson Standard. But basic 

qualification for protection under § 7 and satisfying the 

conditions for protection under Jefferson Standard are two 

separate issues. See Tradesmen Int’l, Inc. v. NLRB, 275 F.3d 

1137 (D.C. Cir. 2002). The Board properly found the former 

met here; we now turn to the latter.

Oncor argues that the Board never addressed the first 

requirement of Jefferson Standard—that an employee’s appeal 

to a third-party “indicate it is related to an ongoing dispute 

between the employees and the employers.” Mountain 

Shadows Golf, 330 NLRB at 1240. The Board tacitly (and, 

given the record, necessarily) admits that it didn’t address this 

point but argues that Oncor never raised the objection to the 

Board, thus barring our review under § 10(e) of the Act, 29 

U.S.C. § 160(e). It points out that Oncor nowhere cited 
7

Jefferson Standard or Mountain Shadows Golf in its exceptions 

to the Board.

We are satisfied that Oncor did in fact raise this objection. 

In the context of its exceptions to the ALJ’s finding of protected 

activity, Oncor objected that “[t]he General Counsel did not 

present any evidence that Reed testified to publicize a labor 

dispute.” J.A. 78–79. The point was clear enough to the 

General Counsel, who responded to the exception by citing 

Jefferson Standard and arguing that the test could be met 

“when it is clear from the context that [third-party appeals] are 

related to a labor dispute and/or employees’ terms and 

conditions of employment.” J.A. 132. To apply the § 10(e) bar 

on the ground of Oncor’s failure to cite Jefferson Standard

itself would represent a clear, and offensive, “triumph of 

technical pleading over fundamental fairness.” NLRB v. Blake 

Constr. Co., 663 F.2d 272, 284 (D.C. Cir. 1981).

* * *

Evidently recognizing that the § 10(e) defense was not 

impregnable, the Board’s brief offered a theory as to why 

Reed’s testimony gave an adequate indication of its connection 

to a labor dispute. Further, in addressing the issue of whether 

Reed’s testimony enjoyed the protection of § 7 regardless of its 

expressing disparagement to third parties, the Board offered 

two reasons that it may on remand view as relevant to what we 

may call the “indication” question. Because at least one of 

those reasons—reliance on an undisclosed attempt to gain 

leverage in bargaining—rests on a legal error, we comment on 

the Board’s reasoning as guidance for the remand.

There is a serious obscurity underlying the question of 

adequate notice of the link between statement and labor 

dispute. Neither the Board’s practice—nor court precedents—

make clear who has the burden of proof on the two conditions 
8

for employee protection under Jefferson Standard. At 

argument, counsel for the Board invited us to think of Jefferson

Standard as a sort of defense for employers to raise against a 

finding that they were unlawfully sanctioning protected

activities.

It is true that some cases, not in this circuit, speak of 

employees’ appeals to third parties as being “stripped of § 7 

protection” under the doctrine, perhaps implying that failing the 

Jefferson Standard test causes a labor activity to lose its 

protected status and thus that the doctrine operates as an 

employer’s defense. Misericordia Hosp. Med. Ctr. v. NLRB, 

623 F.2d 808, 815 (2d Cir. 1980). Our circuit’s cases have not

explicitly addressed whether the Board’s General Counsel 

bears the burden to show that a third-party appeal has 

“indicated” its connection to an ongoing labor controversy, or 

whether the absence of any such indication serves as a defense 

for the employer where an appeal to third parties would 

otherwise be protected under § 7. In some cases, though, the 

phrasing of the issue arguably suggests that parties seeking 

protection for disparagements need to show the connection to 

an ongoing labor controversy in order to gain the Act’s 

protection. Cf., e.g., DirecTV, 837 F.3d at 35 (“And because a 

third-party appeal must indicate a connection to an ongoing 

labor dispute in order to satisfy the first step (mere 

contemporaneousness with a dispute is not enough), the 

handbill in Jefferson Standard would have been deemed 

unprotected even if the Board had found otherwise.”) (internal 

citation omitted); George A. Hormel & Co. v. NLRB, 962 F.2d 

1061, 1064 (D.C. Cir. 1992) (“[S]upporting a boycott [of an 

employer’s products] is protected § 7 activity if it (1) is related 

to an ongoing labor dispute . . . .”); Endicott, 453 F.3d at 538 

(Henderson, J., concurring). Jefferson Standard itself used 

both formulations. First, the Court found that a disparaging 

handbill that did not identify its union authorship or connection 

to an ongoing strike “bring[s] the [authors and distributors’] 
9

discharge under § 10(c) [for cause]”; that is, their activities did 

not count as protected in the first place. 346 U.S. at 477. 

Alternatively, the Court found that even if the handbill 

distribution came under § 7’s protected activities, “the means 

used by the technicians in conducting the attack have deprived 

the attackers of the protection of that section.” Id. at 477–78.

One possibility of course would be for the Board’s General 

Counsel to bear the burden of step one—showing substantial 

evidence that a third-party appeal adequately indicated its 

connection to an ongoing labor dispute—while the employer 

would then bear the burden of step two—affirmatively 

defending that the third-party appeal was so disloyal as to lose 

the protection initially gained at step one. But the issue is in 

the first instance for the Board. Since neither the ALJ nor the 

Board addressed the first step of Jefferson Standard at all, and 

since we have found that Oncor adequately raised the objection 

under § 10(e), we must remand to the Board; “the courts cannot 

exercise their duty of review unless they are advised of the 

considerations underlying the action under review.” Chenery, 

318 U.S. at 94. The Board’s explanation of its view on whether 

the Jefferson Standard test is satisfied will almost certainly

require it to take a position on the allocation of burdens. 

On the substantive merits, the Board’s brief rests on 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. The Board suggests that in this context, 

plus Reed’s identifying himself with the union and his 

testifying about smart meters, “the legislators would recognize 

that the Union and Oncor were engaged in a labor dispute 

regarding smart-meter deployment, and that Reed was at the 

hearing to represent the Union’s side of that dispute.” 

Respondent’s Br. 43. 
10

The record gives very little indication of significant union 

lobbying on smart meters in the years before Reed’s testimony. 

See J.A. 374–83 (documenting union lobbying from 2002 to 

2005); 2116–17 (Reed’s testimony to the Board that the union 

hoped to gain an opt-out bill on smart meters from the 2012 

Texas senate committee). 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 testified (and the 

e-mail itself contained no overt nexus to employee interests). 

J.A. 384. 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. 

J.A. 451. It seems clear enough that the union opposed smart 

meters largely because automation threatened a decline in the 

workforce, 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 relevant “labor 

dispute,” we seriously question Board counsel’s implicit 

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). See, e.g., MikLin Enter., Inc. v. NLRB, 861 F.3d 812, 

822–23 (8th Cir. 2017) (finding that Jefferson Standard

requires disparagement to be “part of or directly related to an 

ongoing labor dispute” to be protected). Of course it is for the 

Board to determine, on remand, what other indication—if 

any—the audience had of a connection between Reed’s 

testimony and an ongoing labor dispute.

In its opinion the Board’s first reason for finding Reed’s 

testimony protected under § 7 was Reed’s previously 

announced (to his employer) intention to use the testimony to 
11

gain leverage in ongoing collective bargaining negotiations 

with Oncor over wage issues and a contract extension. Only 

the day before his testimony, Reed had met with Oncor officials 

in his capacity as a union representative to renegotiate the 

collective-bargaining agreement, which was set to expire later 

in the month. At a preliminary meeting, Reed announced, “I’m 

trying to play nice in the sandbox, we’re here to make a deal 

today, if we can’t, I’m going to be in Austin testifying before 

the Senate commerce committee tomorrow about smart 

meters.” J.A. 13. The parties agree that negotiations stalled 

over the term of the CBA’s extension. Oncor offered only a 

one-year extension, in part, the ALJ found, because of 

uncertainty over how the legislature would respond to smart 

meters. 

The strikers in Jefferson Standard had a similar intent to 

“gain leverage” in negotiations. Their handbill, however,

“made no reference to the union, to a labor controversy or to 

collective bargaining,” and the Supreme Court found that “[t]he 

only connection between the handbill and the labor controversy 

was an ultimate and undisclosed purpose or motive on the part 

of some of the sponsors that, by the hoped-for financial 

pressure, the attack might extract from the company some 

future concession.” Id. at 476–77. “A disclosure of that motive 

might have lost more public support for the employees than it 

would have gained, for it would have given the handbill more 

the character of coercion than of collective bargaining.” Id. at 

477. The Supreme Court thus held in Jefferson Standard that a 

“sharp, public, disparaging attack upon the quality of the 

company’s product,” 346 U.S. at 471, does not qualify as a 

protected § 7 collective bargaining activity when the subject 

matter “ha[s] no discernible relation to [the labor] controversy” 

and the motive to gain raw leverage in bargaining with the 

employer was “undisclosed” to third parties, id. at 476–77; see 

DirecTV, 837 F.3d at 35. 
12

By the same token, there is no finding by the Board in this 

case either that Reed disclosed his subjective motive to pressure 

Oncor into concessions during labor negotiations or that the 

subject matter of Reed’s statements was “connect[ed] to [the] 

ongoing labor dispute.” DirecTV, 837 F.3d at 35. In the 

absence of any such findings, the mere “fortuity of the 

coexistence of a labor dispute” and third-party product 

disparagements does not satisfy the Jefferson Standard

requirement that Reed’s testimony indicate a nexus to an 

ongoing labor dispute. See DirecTV, 837 F.3d at 35; see also 

Jefferson Standard, 346 U.S. at 477 (no protection where 

product disparagement was “a concerted separable attack 

purporting to be made in the interest of the public rather than in 

that of the employees”). Whereas disparagements linked to a 

specific issue in a labor dispute, e.g., a complaint about how a 

product flaw aggravates customers, whom the workers must 

constantly face, are likely to engage listeners because a win for 

the workers will imply a win for customers, disparagements not 

so linked seem unlikely to enlist listener support—at least if 

they reveal the speakers’ true purpose. It would be strange to 

tempt unions to sail so close to the wind by protecting 

statements that only marginally reveal a speaker’s motivation. 

Finally, the Board found Reed’s testimony protected (aside 

from the Jefferson Standard difficulty) because it “related to 

(and was spurred by)” a union concern about the “safety” of 

employees represented by the union. J.A. 3. The Board 

asserted “Reed’s perception of a fire or electrical-arcing hazard 

to himself and his coworkers,” id. at 4, but in fact the testimony 

makes no mention of worker hazards. In its opinion, the Board 

pivoted from the worker-hazard assertion to a claim that “Reed 

illustrated the effect on employees’ working conditions of the 

increase both in the number of service 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.” J.A. 3–4. 
13

There is a lot to tease out here, and the Board has given us 

no help on how to do it. First, as we said, the testimony made 

no detectible reference to worker risks. Second, the Board has 

done nothing 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. In Jefferson Standard, the handbills in question 

attacked the employer, a local television station, for undue 

reliance on old programs and a complete absence of local 

programming. In context, this was no suggestion of a link to a 

labor dispute, because the labor dispute didn’t revolve around

those deficiencies. See 346 U.S. at 468. Similarly, here; so far 

as the collective bargaining was concerned, smart meters were 

not an issue (except as a partial explanation for the parties’ 

differing preferences as to contract duration). If the Board is to 

rely on the deep background dispute over smart meters, it will 

have to draw some intelligible lines as to when statements that 

look like simple disparagement can be found, without more, to 

signal to the audience that the remarks are a move in a genuine 

labor dispute. 

The Second Circuit has held that a workers’ report about a 

hospital’s quality of care (including understaffing), submitted 

to a special commission on hospital accreditation, qualified for 

protection notwithstanding Jefferson Standard. Misericordia, 

623 F.2d at 813–15. Because of the commission’s role in 

enforcing state and federal health care standards, the court 

found that the Board “was correct in concluding that the Report 

was similar to protected complaints made to an appropriate 

administrative agency.” Id. at 813. Perhaps because of that 

analogy, the court made no effort to consider expressly the 

extent to which the report gave its readers any indication of 

relating to a labor dispute. We note that Misericordia was 

decided long before the Board enunciated its two-pronged 

approach to Jefferson Standard in Mountain Shadows Golf. 
14

We vacate and remand to the Board to make clear: the 

burden of proof on Jefferson Standard’s first condition for 

protection of a disparaging statement, its conclusion on the 

merits of that issue, and of course its grounds for both 

conclusions. 

* * *

Remand would be unnecessary if there were no substantial 

evidence to sustain the Board’s view under Jefferson 

Standard’s second requirement for protection of an employee’s 

disparagement to third parties, namely a finding that his 

testimony was not “maliciously untrue,” J.A. 5 (quoting Valley 

Hospital Medical Center, 351 NLRB 1250, 1252 (2007)). 

Oncor argues that it was. We disagree and affirm the Board’s 

findings on this issue.

While the ALJ noted that Reed’s two-minute testimony 

was arguably “imprecise, even careless,” the Board found that 

Reed’s statements did not rise to the level of malicious 

falsehood. J.A. 24. We agree that his testimony certainly 

lacked restraint. By concluding that “I do know a little bit about 

fire and heat, and these [smart meters] are causing damage to 

people’s homes,” J.A. 14, Reed gave the impression that smart 

meters (and only smart meters, not their analog counterparts) 

were causing actual fires capable of significant structural 

damage. In reality, it appears that the problem, to the extent 

there was one, consisted of newer meters not quite fitting 

correctly into older meter bases, with the result that meters

sometimes sparked, arced, and caused lug nuts or portions of 

the meter base to melt or burn. Oncor contends this problem 

could arise in any new meter, whether analog or digital. 

But Reed was technically right that the heat was damaging 

customer’s “homes” because meter bases, unlike the meters 

themselves, are the property of customers and thus their 
15

responsibility to repair and replace. Reed’s opening testimony 

made clear he was addressing smart meters’ tendency to 

“burn[] up the meter bases.” J.A. 14. Before his testimony he 

consulted the local union in Houston and a Dallas County 

assistant fire marshal and received some confirmation of his 

perception that smart meters were overheating more frequently. 

Oncor protests that the smart meters in Houston were of an 

entirely different type than those used in Dallas and that a 

careful review of Reed’s work orders does not bear out his 

intuition that smart meters were any more problematic than 

analog meters. But because Reed’s possible malice is an 

arguable question of fact, we defer to the Board’s weighing of 

the evidence. On this record, there is substantial evidence to 

sustain the Board’s decision. See DirecTV, 837 F.3d at 42 

(according “considerable deference” to the Board’s reasonable 

conclusions on malicious intent). 

* * *

In addition to finding Oncor liable under § 8(a)(3) for 

interfering with Reed’s protected Union activities, the Board 

held Oncor had also violated § 8(a)(5) for failing to produce 

needed information to bargaining representatives. See 29 

U.S.C. § 158(a)(5). Oncor objects to the three separate findings 

of fault on its part, but we find no error in the Board’s rulings.

Oncor does not dispute the relevance of the first two 

requests for information. On December 18, 2012, the Union 

requested “[a]ll documents reviewed and/or created or 

considered in connection with [Oncor’s] investigation” of the 

veracity of Reed’s testimony. J.A. 1548–51 (emphasis added). 

Oncor contends that after searching its records it found no helpline records, service orders, lawsuits or claims reporting 

burning smart meters. The ALJ found Oncor in violation 

because it did not produce the records and orders it had 

“reviewed or considered” so that the Union could make its own 
16

determination of whether they related to burned smart meters. 

As the ALJ noted, Oncor never raised an objection as to why it 

should not produce those records in their entirety. 

On March 25, 2013, the Union requested information 

“pertaining directly to [Reed’s] discharge, possible disparate 

treatment, and/or records that might substantiate the testimony 

he gave.” J.A. 1560. Oncor objects that because the grievance 

was going to arbitration, the request for information amounted 

to pre-arbitration discovery to which the Union was not 

entitled. The ALJ reasoned that although “there is no right to 

pretrial discovery when a grievance has been referred to 

arbitration,” J.A. 21 (citing California Nurses Ass’n, 326 

NLRB 1362 (1998)), and parties are not permitted to seek 

information on their opponents’ arbitral strategy, see id., 

employers remain under the obligation to produce relevant 

information as timely requested by bargaining representatives. 

The ALJ sanctioned Oncor for failing to meet the latter burden. 

Finally, in a case virtually unrelated to this one (but 

involving some of the same cast of characters), the Union 

sought information from Oncor regarding the termination of an 

employee, Samuel Goodson, and the promotion of a 

comparator employee, Eddie Lopez. Oncor refused to provide 

Lopez’s personnel file for the period after Lopez’s promotion, 

arguing it was irrelevant once Lopez was no longer a member 

of the same unit as Goodson. The Board overruled the ALJ to 

sanction Oncor for its refusal. The incident for which Goodson 

was fired occurred on May 13, 2013. Lopez was promoted on 

May 26, while Goodson was disciplined on July 16. The Union 

requested both employees’ files on July 25. The Board 

concluded that the relevance of Lopez’s file as a comparator to 

Goodson’s should have been obvious to Oncor even after 

Lopez’s promotion.
17

While producible information “must be relevant, the 

threshold for relevance is low.” DaimlerChrysler Corp. v. 

NLRB, 288 F.3d 434, 443 (D.C. Cir. 2002) (internal citation and 

quotation marks omitted). “The Supreme Court has described 

the relevance standard as a liberal, ‘discovery-type’ standard.” 

Id. (quoting NLRB v. Acme Indus. Co., 385 U.S. 432, 437 

(1967)). And the issue of relevance “is, in the first instance, a 

matter for the NLRB, and the Board’s conclusions are given 

great weight by the courts.” Oil, Chem. & Atonic Workers v. 

NLRB, 711 F.2d 348, 360 (D.C. Cir. 1983). Under this 

deferential standard, we do not find that the Board was 

unreasonable in its decision to sanction Oncor’s failure to 

produce Union-requested information.

* * *

As a final ambitious alternative, Oncor asks that we 

dismiss the General Counsel’s complaint because he did not 

have authority to issue it. The Supreme Court recently ruled 

that the official who initiated the complaint against Oncor, 

Acting General Counsel Lafe Solomon, served in violation of 

the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345 et seq.

(“FVRA”). NLRB v. SW General, Inc., 137 S. Ct. 929 (2017). 

Shortly after our court had reached the same conclusion in the 

case affirmed by the Supreme Court, SW General, Inc. v. 

NLRB, 796 F.3d 67, 83 (D.C. Cir. 2015), the duly appointed 

General Counsel Richard F. Griffin Jr. sent Oncor a notice of 

ratification, which indicated that he had reviewed the record 

and independently decided to pursue the complaint. J.A. 169. 

We need not decide on the effectiveness of the ratification, 

however, because we find our review blocked by the 

untimeliness of Oncor’s objection, raised in the form of a 

motion filed with the Board about 18 months after it had 

already filed its exceptions to the ALJ’s decision and after 

General Counsel Griffen’s notice of ratification apparently 

gave Oncor the idea. In SW General, after reviewing the trade-
18

offs inherent in applications of the de facto officer doctrine 

(between the needs for providing adequate remedies for actions 

taken invalidly and for enabling the executive branch to 

undertake prompt cures, see also Andrade v. Lauer, 729 F.2d 

1475, 1499 (D.C. Cir. 1984)), we found the exception there 

timely, observing, “We address the FVRA objection in this case 

because the petitioner raised the issue in its exceptions to the 

ALJ decision,” but we “doubt[ed] that an employer that failed 

to timely raise an FVRA objection—regardless whether 

enforcement proceedings are ongoing or concluded—will 

enjoy the same success.” SW General, 796 F.3d at 83. In view 

of the delay here, we find the claim barred. 

* * *

Oncor’s petition is granted in part and denied in part. The 

Board’s decision is vacated and remanded for further 

proceedings, specifically to clarify the burdens of proof in cases 

under Jefferson Standard and articulate whether and how those 

burdens were met here. The Board’s cross-petition for 

enforcement is accordingly denied in part. Its petition to 

enforce its order on the requests for information is granted.

So ordered.