In Oncor Electric Delivery Co., 364 NLRB No. 58 (July 29, 2016), the National Labor Relations Board found that the employer, an electric utility, violated the Act by terminating an employee for his testimony before the Texas Senate. The employee testified before the Senate regarding the employer’s use of new smart meters that the employee claimed were “burning up” and were causing damage to customers’ homes. The employer asserted that the employee’s conduct was not protected activity because it contained “malicious falsehoods” damaging to the employer’s business.

The Board found that the employee’s conduct was protected because the employee’s testimony was union activity and that the employee was testifying as a union official. Moreover, the Board found that the employee’s testimony was “for the purpose of collective bargaining or other mutual aid and protection” because 1) his testimony “was at least partially motivated by his attempt to gain leverage for the Union in bargaining negotiations with the Respondent,” and 2) the safety of smart meters “bears a more ‘immediate relationship to employees’ interests’ in seeking to improve their own working conditions…” as there were related safety issues for the employees.

The Board also rejected the employer’s argument that the employee’s testimony was maliciously false. While the employee’s testimony was arguably “imprecise, even careless,” it was not maliciously untrue because there was evidence that there were issues with the smart meters including parts heating up, melting and burning.  The employer asserted that damage to the meter “is not tantamount to the meter itself causing damage to a customer’s home.” The Board, however, found the employer’s argument to be “highly technical…, one which belies any suggestion that [the employee] knowingly made a false statement or testified recklessly when stating that smart meters are a cause of increased heating and burning.”