[00:00:00] Speaker 00:
Case number 16-1278L, Encore Electric Delivery Company LLC Petitioner versus National Labor Relations Board.

[00:00:08] Speaker 00:
Mr. Lonegan for the petitioner, Mr. Casterly for the respondent, and Mr. Gillespie for the intervener.

[00:00:28] Speaker 02:
Good morning.

[00:00:29] Speaker 05:
Morning.

[00:00:31] Speaker 05:
May it please the court.

[00:00:32] Speaker 05:
My name is David Lonergan.

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I'm here with Amber Rogers, who's sitting at the council table with me.

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Together we represent Encore Electric, the living company in this matter.

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I'd like to reserve two minutes for rebuttal, if I may.

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Case involves several issues.

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Obviously, we'll answer any questions that you have on any of the issues.

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But we'd like to focus our oral argument on whether the testimony for which Mr. Reed was terminated was protected under the National Relations Act.

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The board failed to apply the law, court, and board precedent in finding Mr. Reed's testimony to the Texas Senate committee was protected and that it did not lose protection of the act.

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The board reduced the issue of whether Reed's testimony was protected to analysis of maliciously untrue.

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Supreme Court, this court and the board have all consistently held that employee communication to a third party only maintained Section 7, Section 8 protection if it indicates that it's related to an ongoing labor dispute and it is not so disloyal, reckless, or maliciously untrue.

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The board failed to apply both parts of this test.

[00:01:39] Speaker 02:
So you're not disputing that it was collective action for the purpose of either collective bargaining or mutual aid or support?

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You want us to go directly to the Jefferson standard?

[00:01:49] Speaker 05:
No, Your Honor, we are disputing that it's concerted activity or protected.

[00:01:54] Speaker 05:
We don't think it's concerted because he testified he was, based on his own experience, he used the word.

[00:02:02] Speaker 02:
Well, he said he was there in a dual capacity.

[00:02:05] Speaker 05:
I think he introduced himself, said who he worked for, and said he'd recently become manager of the business manager for the union.

[00:02:12] Speaker 05:
I don't know that he ever said dual capacity.

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I became a representative for our local union.

[00:02:17] Speaker 02:
He signed in as representing himself and the local IBEW Local 69.

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So why isn't that

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Why isn't it good enough, just on the first prong here, to show that he was engaged in concerted activity?

[00:02:32] Speaker 05:
His testimony, Your Honor, he said it was based on his own personal experience.

[00:02:36] Speaker 02:
Well, he also said, I noticed this.

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I called the Union there in Houston and got more information.

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So he had some things that talked about his own work, which would have been both as a Union member and as just a person.

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And then he said, I called the Union and got more information about this.

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So what do we do when you have this sort of two hats being worn at the same time?

[00:02:55] Speaker 05:
I'm sorry, two hats what?

[00:02:56] Speaker 02:
Two hats, wearing two hats at the same time, right?

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I'm here in my own personal capacity and as a union representative.

[00:03:02] Speaker 05:
Well, the call to the other union is almost irrelevant to his testament, is irrelevant to his testament, other than it shows it was reckless.

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And what he said, that union didn't install the same type of meter at all.

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And they had material differences.

[00:03:15] Speaker 02:
No, I'm just talking about whether he was there in his capacity as a union official.

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Put aside the content of the testimony.

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What was his capacity?

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He was wearing two hats.

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He signed in as self and as on behalf of the union and introduced himself as a lineman and now a troubleman and a representative of the union.

[00:03:36] Speaker 05:
Yes, Your Honor.

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Then he testified strictly based on his own experience, didn't reference any employee concerns.

[00:03:42] Speaker 02:
Well, maybe that's his experience as a union member.

[00:03:45] Speaker 02:
Yes.

[00:03:45] Speaker 02:
Does that not count?

[00:03:47] Speaker 05:
Pardon?

[00:03:47] Speaker 02:
I'm just trying to understand what your legal rule is for why this is not, in your view, collective action, just that first prong of the test.

[00:03:55] Speaker 05:
Yes.

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I don't think it's concerted because he testified again just to his own

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believes his own testimony and didn't bring up any employee concern.

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But I'd also like to add, Your Honor, if you find it concerted, I think this Court has said that, well, even if it's concerted, that doesn't mean it's protected.

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And we don't think it was protected either.

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It overlaps a little, but it's not talking about terms and conditions of employment.

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It has no nexus to employment.

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So I thought your strongest point was that it doesn't signal in any way to the listeners

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any relationship to collective bargaining itself, particularly the collective bargaining process that was then underway.

[00:04:42] Speaker 05:
I agree with you, Your Honor.

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That's why when I was getting ready to talk about the Jefferson Standard Analysis and in your case, its application in Indicat and DirectTV, but I was trying to answer Judge Millett's questions.

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I think it is a several.

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When we made our objections, we

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that it wasn't conservative, you're right, it wasn't protected, and also said it was, it didn't indicate a labor dispute, it was disparaging, it was reckless.

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So yes, Your Honor, we did make those, and the ones I was going to focus on today were the two prongs of the Jefferson standard, because he did not indicate that it related to a labor dispute in any way.

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And I think this court has held and the Supreme Court has held that he had to make it apparent on his communication to the third party that it did relate to a labor dispute.

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Must it be within the statements themselves here, the testimony itself, must that make it explicit or can it be discerned from context?

[00:05:39] Speaker 05:
No, it has to be in the terms itself.

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And I think this court has said, and the Supreme Court has said, that the reason for that is it's got to put the listener, the recipient, on notice.

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But what if the recipient's on notice because the union had been lobbying on this issue.

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The union directed him to go there.

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He testifies, says, I'm here, at least in part as a union member.

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And then Encore testifies.

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Could one not discern from that context?

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Is it pretty clear from that context that this is an ongoing disagreement?

[00:06:10] Speaker 05:
I think the union lobbying on that was three or four years prior to this.

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As far as the context of it, I think the

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You have to make the reference to the labor dispute, and even if there's an ongoing labor dispute, if you don't mention it in the actual communication, then it loses protection of the act.

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And regardless of what was going on, the board's own standard-bear American golf.

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and in Jefferson Standard, in those situations there were labor disputes going on, but the communication didn't make it apparent that it involved a labor dispute.

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So I think people reading the testimony, people hearing the testimony, media reporting on the testimony, they don't know that it's a labor dispute.

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And I think this Court has said the logic for making it apparent in the communication

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is so that the listener can decide for himself, herself, whether in fact it's true or not true.

[00:07:09] Speaker 01:
Mr. Lovigan, who's the intended audience here?

[00:07:12] Speaker 01:
Isn't it the Senate committee?

[00:07:14] Speaker 05:
I think the main attendance.

[00:07:15] Speaker 05:
Yes, that's the main audience, but it's also public, and it's also recorded, and there's also media people there.

[00:07:26] Speaker 01:
Legislation here was the legislation that might have given customers, homeowners a choice as between an analog and a digital meter, is that right?

[00:07:36] Speaker 05:
No, Your Honor.

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This hearing was strictly for public health issues.

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The record shows that the Lieutenant Governor's notice to the committee hearing was that it's a public health issue for Texans.

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And that's what the hearing was about.

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Public health issues relating to

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smart.

[00:07:55] Speaker 01:
Okay.

[00:07:55] Speaker 01:
And the and the public health issue was with the with the smart meters, not with the analog meters.

[00:08:00] Speaker 03:
That's correct.

[00:08:01] Speaker ?:
Okay.

[00:08:02] Speaker 03:
Who's with the installation?

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Well, I guess different views as to what the dispute was about that dispute.

[00:08:10] Speaker 05:
That's just I was answering questions on the dispute, the focus of the hearing.

[00:08:14] Speaker 05:
Was there any

[00:08:16] Speaker 03:
A clause offered by either party in the dispute over the CBA, speaking to smart meters.

[00:08:28] Speaker 05:
No, Your Honor.

[00:08:29] Speaker 05:
There was a pre-negotiations in August, and they were like, Mr. Reed put in 22 or so proposals.

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None of them had anything to do with smart meters, their impact.

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Then the day before the testimony,

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They sat down and they negotiated and Mr. Reed presented about three proposals, I think overtime, rest time, but nothing about smart meters.

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The company proposal had nothing about smart meters.

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So in answer to your question, no, proposals were totally divorced from smart meters or any impact that they had.

[00:08:58] Speaker 01:
Although Mr. Lonergan, my impression from the record was that the Encore had offered a one-year extension of the underlying collective bargaining agreement because of the possibility that state legislation would move, and I think that's the legislation relating to smart readers, is that right?

[00:09:19] Speaker 05:
No, I don't think so, Your Honor.

[00:09:21] Speaker 05:
I mean, I know that quote's in the record, but there's all kinds of legislative activities going on in Austin, and it wasn't necessarily about public health on smart phones.

[00:09:30] Speaker 01:
What else is there?

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What's your understanding about what legislation they were referring to?

[00:09:33] Speaker 05:
I actually don't know.

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I know that quote in the record.

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I don't think it's developed.

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It's been to smart meters or anything else.

[00:09:38] Speaker 01:
And on the final prongs of the Jefferson standard test about prongs, the final aspects, the components about whether testimony is so disloyal or maliciously untrue, who bears the burden in your view of establishing those elements?

[00:09:58] Speaker 05:
I think the board has to establish that.

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I mean, the way the test is up, they've got to show that it didn't lose the protection of the act because of those two things.

[00:10:08] Speaker 01:
Although the issue here sort of tees up labor right against an employer's prerogative to fire for cause.

[00:10:18] Speaker 05:
I'm sorry, labor what?

[00:10:20] Speaker 01:
An asserted labor right.

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versus an employer's prerogative, asserted prerogative to fire for cause.

[00:10:29] Speaker 01:
And in firing for cause, wouldn't it be the burden of Encore to establish that notwithstanding the right to engage in concerted action on the part of a union leader, that it nonetheless has cause

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that is strong enough under DirecTV to trump the concerted activity, i.e.

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that it has caused because of the testimony that's so disloyal or maliciously untrue.

[00:11:04] Speaker 05:
No, I don't think it's the employer's burden.

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I do understand your point that there's got to be some balance between under Tennessee employer's right to discharge and under Section 7 and 8.

[00:11:15] Speaker 05:
But in this case, it's like Jefferson's standard, the balance, there's no underlying grievance to balance.

[00:11:21] Speaker 05:
He doesn't have

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an issue about smart meters that he mentions in his testimony at all.

[00:11:26] Speaker 01:
Okay, well if, just assuming for purposes of the question that we've reached that point under the Jefferson standard analysis where there is protection for the third party appeal, and I know you can test this, but if we were to hold

[00:11:44] Speaker 01:
that he had adequately indicated the relationship to either ongoing labor dispute or mutual aid or protection of employees, then the question is what next and who bears the burden.

[00:11:58] Speaker 01:
So I'm assuming that we have found that there's some protection that's kicked in and then the question is in rolling that back based on disloyalty or malicious falsehood.

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that be the employer's burden?

[00:12:16] Speaker 05:
I don't think so, Your Honor.

[00:12:20] Speaker 05:
I think it's still on the board to, of course, be contested what it's protected.

[00:12:25] Speaker 02:
It's a defense, though, right?

[00:12:26] Speaker 05:
Pardon?

[00:12:27] Speaker 02:
It's protected, and now you want to say that protection goes away.

[00:12:29] Speaker 02:
Are there other instances under...?

[00:12:31] Speaker 05:
I don't think it's indicated it's protected if it doesn't

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past those two prongs.

[00:12:36] Speaker 05:
I mean, isn't that still part of the analysis?

[00:12:38] Speaker 05:
I mean, the Supreme Court, I don't think, broke it up like that.

[00:12:40] Speaker 05:
It's part of the overall analysis.

[00:12:41] Speaker 02:
Well, it's spoken up in terms of you lose the protection.

[00:12:43] Speaker 02:
So you can't lose protect.

[00:12:45] Speaker 02:
When those two Jefferson standard prongs are met, you lose the protection you otherwise would have under the act.

[00:12:51] Speaker 02:
That's how it's spoken of.

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And you can't lose protection if it hasn't attached.

[00:12:56] Speaker 02:
I mean, are there other contexts in which conduct is protected

[00:13:03] Speaker 02:
but that protection will go away under the labor law based upon certain showings where those factors for taking protection away are part of the board's affirmative case rather than an affirmative defense.

[00:13:17] Speaker 02:
Are there other examples that fit this model?

[00:13:19] Speaker 05:
Maybe strike or misconduct, Your Honor.

[00:13:21] Speaker 05:
I mean, strike conduct is protected, but if somebody's doing something wrong, violence,

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language, that type of thing.

[00:13:32] Speaker 02:
And the board has to prove no misconduct, or do they show it was striker conduct and then the company comes in and says, hang on, here's what they did and let's cross the line?

[00:13:41] Speaker 05:
Maybe I mesh it all together wrongly, but I think the board has to prove that the conduct was true striker misconduct and not violent or whatever the other issue is.

[00:13:57] Speaker 02:
All right, I think we'll hear from the board now, but we'll give you some time on revival.

[00:14:01] Speaker 05:
Thank you, Your Honor.

[00:14:01] Speaker 02:
Thank you.

[00:14:22] Speaker 04:
Good morning, and may it please the court.

[00:14:23] Speaker 04:
My name's David Casserly for the National Labor Relations Board.

[00:14:27] Speaker 02:
Can you answer this burden of proof question?

[00:14:29] Speaker 04:
Yes, Your Honor, and I think that goes to a pretty central disagreement in this case.

[00:14:34] Speaker 04:
Under board law, the affirmative defense is the Jefferson standard.

[00:14:38] Speaker 04:
So not just the loss of protection due to malicious or maliciously untrue or disloyalty, but also the ongoing labor dispute, loss of protection because that's not sufficiently indicated in the communication.

[00:14:52] Speaker 04:
That is all an affirmative defense that is part of the employer's burden of proof to bring to the board.

[00:14:58] Speaker 04:
What the general counsel before the board has as the board burden of proof is the first step, whether it's concerted and whether it relates to employee terms and conditions of employment.

[00:15:09] Speaker 02:
Is there any circuit court cases on that from our court or others on that burden of proof?

[00:15:14] Speaker 04:
Well, Your Honor, so Mountain Shadows, I believe, was enforced, and that is the, that's the standard of this, that's the genesis of this standard.

[00:15:23] Speaker 04:
This court has approved the Mountain Shadows test explicitly in direct TV.

[00:15:28] Speaker 01:
The direct TV didn't direct- But Parral says it's not an affirmative defense.

[00:15:32] Speaker 01:
You characterize this as an affirmative defense, and I take it that if it's a defense, it's a defense not in the sense of

[00:15:37] Speaker 01:
affirmative, but in the sense of just an ordinary defense that knocks out an element of a claim.

[00:15:43] Speaker 01:
And it may well be the employer's burden in all or in part, but in Hormel, it was characterized as not an affirmative defense, which has implications for pleading, for example.

[00:15:55] Speaker 04:
I guess yes, Your Honor.

[00:15:57] Speaker 04:
The point is that it's a defense with a burden on the employer.

[00:16:02] Speaker 04:
So and in this case, it's undisputed that Mr Reed was fired for his testimony before the committee.

[00:16:09] Speaker 04:
That's not something there's no motivation issue.

[00:16:11] Speaker 04:
We know what the motivation is.

[00:16:13] Speaker 04:
So in that case, what the board had to answer was whether his conduct was protected, and then whether the employer had determined, had adequately bore its burden of proof in showing that it was not protected after that it lost the act's protection.

[00:16:30] Speaker 04:
And that's where the ongoing labor dispute issue comes in.

[00:16:33] Speaker 03:
What is it that?

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would put a Texas legislator on notice that there was a link here between Reed's testimony and the bargaining negotiations.

[00:16:51] Speaker 04:
Under board law, the link required to determine if it's protected in the first place under the general counsel's burden isn't an explicit link that it makes.

[00:17:01] Speaker 03:
It just needs to relate.

[00:17:02] Speaker 03:
What's an implicit link?

[00:17:03] Speaker 04:
Well, he mentioned that he was part of the union.

[00:17:06] Speaker 04:
He started with a story about how he had gone to a low-income customer's house, how he had to explain to this customer that there was damage to this customer's property, which was part of this meter base, and that they would have to pay for the damage.

[00:17:20] Speaker 04:
So that was how he started it out.

[00:17:22] Speaker 04:
So it was started out with a complaint about an employee issue.

[00:17:25] Speaker 04:
Specifically, that was the first.

[00:17:27] Speaker 04:
It was supposed to be a customer issue.

[00:17:29] Speaker 04:
But it's also an employee issue.

[00:17:31] Speaker 03:
Was the union bargaining for some sort of protection against having this hazard?

[00:17:41] Speaker 03:
Hazard of having to respond to these widows and orphans who were being injured by the smart meters?

[00:17:48] Speaker 04:
No, Your Honor, the union wasn't specifically in bargaining about that.

[00:17:53] Speaker 03:
It wasn't bargaining at all about it, right?

[00:17:56] Speaker 04:
No, Your Honor, although it's not required for the test.

[00:17:59] Speaker 04:
It requires that it relates to employee terms and conditions of employment.

[00:18:04] Speaker 04:
It doesn't necessarily have to be.

[00:18:06] Speaker 03:
Certainly, the reasoning of Jefferson's standard

[00:18:10] Speaker 03:
It seems to be, does the audience have notice that this is part, is it part of coercion, as to use the court's term, or leverage, as Mr. Reed, using Mr. Reed's term, or is it something that they're actually bargaining over, which they certainly were in Sierra Publishing in Jefferson, well, not in Jefferson Standard.

[00:18:37] Speaker 03:
Yes, Your Honor.

[00:18:42] Speaker 04:
Although, to be clear, it's not just entirely about collective bargaining.

[00:18:45] Speaker 04:
I mean, in DirecTV, it wasn't a collective bargaining issue that they brought to the customers.

[00:18:52] Speaker 04:
It was an issue about

[00:18:55] Speaker 02:
complaints about management telling the Employees to do to lie to customers and those sorts of things that weren't there's no evidence that there was bargaining about those specific state But that was an employer telling an employee to do something that employees didn't want to do and I think it's pretty self-evident employees don't want to have to lie to customers or make misrepresentations, but what in

[00:19:18] Speaker 02:
His testimony, for the Jefferson prong, so not for the protection prong, collective activity, for the Jefferson prong of putting the Senate on notice that there was an ongoing dispute between the union and the employer about these meters, what in his testimony did that?

[00:19:36] Speaker 04:
So two answers to your question, Your Honor.

[00:19:37] Speaker 04:
First, to answer directly, it's fairly similar in that he started out with this complaint about having to go to customers.

[00:19:48] Speaker 04:
Note that in DirecTV, the employees there tailored their message to their audience.

[00:19:54] Speaker 04:
They said, you, customers, are being lied to.

[00:19:57] Speaker 04:
They didn't say, we're being forced to lie to you.

[00:20:00] Speaker 04:
And it's okay for employees to tailor their message to the audience here.

[00:20:04] Speaker 04:
Mr. Reed realizes that there's more customers who are covered by the Senate committee's jurisdiction than there are employees.

[00:20:12] Speaker 04:
He makes his complaint about going to this woman's house and explaining to her,

[00:20:17] Speaker 02:
But this is tailored to the audience because the audience was not looking into labor problems, it was looking into customer health and safety.

[00:20:26] Speaker 02:
It wasn't looking into this unemployment matter at all, and so he comes in and testifies about customer safety and customer dissatisfaction.

[00:20:37] Speaker 02:
Yes, Your Honor, and that's... And how that shows that he and the Union, or, I'm sorry, the Union and Encore are in a battle about these meters that actually has nothing to do with safety of the consumers, as opposed to safety of the workers.

[00:20:54] Speaker 04:
Well, Your Honor, I don't believe that

[00:20:58] Speaker 04:
The committee hearing explicitly stated that it was about safety of consumers as opposed to workers.

[00:21:05] Speaker 04:
Workers are people too, and they're covered by the jurisdiction.

[00:21:08] Speaker 04:
And I don't think that was an unreasonable complaint to bring up.

[00:21:11] Speaker 02:
Where does he talk about employee safety in his testimony?

[00:21:14] Speaker 04:
He doesn't directly talk to it, but he does talk about, well he talks about the meters burning up and these interviews.

[00:21:22] Speaker 02:
He doesn't say that happens when they're there, he just says it happens.

[00:21:25] Speaker 02:
It could happen after they install them and leave.

[00:21:27] Speaker 04:
That's true, Your Honor.

[00:21:29] Speaker 01:
I understood that the board's position is that there is protection for this kind of overlapping, pursuing the overlapping interests of the workers and the homeowners and that here there's a long history, indeed a history with this committee of testimony regarding smart meters and opposition from the union

[00:21:54] Speaker 01:
on the part of workers, and that this is but the latest iteration of testimony before the Senate, and included by, presided over by Mr. Corona, is that not right?

[00:22:07] Speaker 04:
That is true, Your Honor.

[00:22:08] Speaker 01:
And what about the asserted bond or nexus between the collective bargaining agreement and this testimony?

[00:22:17] Speaker 01:
Mr. Lonergan said that it wasn't clear why the one year

[00:22:23] Speaker 01:
extension was offered and I had the impression because the ALJ had made that connection and the opinion of page 13 that apparently referring to the union's attempts to get an opt out for smart meter customers at no charge, that they're talking about

[00:22:42] Speaker 01:
what the legislation is that leaves things up in the air and requires this one-year extension.

[00:22:48] Speaker 01:
Is that your understanding, and can you tell us more about the connection between ongoing bargaining?

[00:22:53] Speaker 04:
Yes, Your Honor.

[00:22:54] Speaker 04:
Mr. Reed's impression was that they offered the one-year extension and said because of developments in the legislature, his impression was... I'm sorry, who said it had to do with developments in the legislature?

[00:23:07] Speaker 04:
That was the employers, uh, had a head negotiator, your honor.

[00:23:12] Speaker 04:
That's all I have to read.

[00:23:14] Speaker 04:
Tell that told that to read.

[00:23:15] Speaker 04:
I don't think I think it's true that the testimony doesn't explicitly state what developments were, um, do to happen during the Legislature.

[00:23:25] Speaker 04:
But Mr Reid took that as being related to smart meters.

[00:23:28] Speaker 03:
What's the exact link there?

[00:23:31] Speaker 03:
Is it the uncertainty or the whatever new expense the legislature might impose on CORE, or something else, or a third thing?

[00:23:44] Speaker 03:
I mean, I'm not sure how it, I mean, in bargaining over contracts, who wants long and who wants short must constantly fluctuate and must depend on other terms in the agreement.

[00:24:00] Speaker 04:
I'm not sure.

[00:24:01] Speaker 04:
I'm not sure.

[00:24:01] Speaker 04:
I'm not sure.

[00:24:01] Speaker 04:
Yes, sir.

[00:24:01] Speaker 04:
It must be something.

[00:24:03] Speaker 04:
Uh it's reason was reasonable for Mr Reed to infer that encore expected something to change or something and wanted to be able to bargain again in a year after that

[00:24:19] Speaker 04:
that was, the testimony doesn't say what legislation in particular.

[00:24:23] Speaker 04:
It's reasonable to think it was this opt-out.

[00:24:26] Speaker 04:
The opt-out, Encore has said, would have cost it considerable money and also would have been fairly lucrative for the union in terms of jobs.

[00:24:35] Speaker 04:
The union has lost a lot of jobs to the smart meter deployment.

[00:24:38] Speaker 03:
Can we go back to your earlier statement about the – or concept about the necessary link?

[00:24:45] Speaker 03:
between the bargaining and the statement.

[00:24:51] Speaker 03:
Is it your position that if a union member identifies himself as a union member and then makes a disparaging statement about the product, that disparaging statement is automatically protected?

[00:25:07] Speaker 03:
If he identifies himself as a union member, it must have something to do with

[00:25:13] Speaker 03:
union interests, and the union always has an interest, presumably, in the firm prospering.

[00:25:21] Speaker 04:
So Your Honor, in determining whether it's protected in the first place, the disparaging comment wouldn't be considered.

[00:25:29] Speaker 04:
But in determining whether it has lost the protection of the act, which is the employer's burden in that case, yes, the disparaging comment is considered.

[00:25:39] Speaker 04:
It's a balancing test under direct TV.

[00:25:41] Speaker 04:
So the question with the disparaging comment is whether it's so disproportionate

[00:25:46] Speaker 04:
uh... to uh... grossly disproportionate to employee concerns uh... to legitimate employee concerns and if it is that it's not that it loses the protection of the act uh... but here the board found that it wasn't in part because uh... the as the board said

[00:26:03] Speaker 04:
He didn't mention Encore smart meters.

[00:26:05] Speaker 04:
This wasn't in particular about Encore.

[00:26:08] Speaker 04:
He, in fact, explicitly mentioned Centerpoint as well before he made the comment about these meters causing damage to people's homes.

[00:26:17] Speaker 03:
Yeah, I don't know if it's any less disparaging.

[00:26:20] Speaker 03:
He says they work for Encore.

[00:26:21] Speaker 03:
A few other people who probably are not in competition with Encore.

[00:26:25] Speaker 03:
But it's not even.

[00:26:26] Speaker 03:
Encore is a distributor, right?

[00:26:27] Speaker 04:
That's true, Your Honor.

[00:26:29] Speaker 04:
Encore doesn't actually create the smart meters.

[00:26:32] Speaker 04:
It installs them.

[00:26:33] Speaker 04:
It's the electric utility.

[00:26:34] Speaker 03:
It's also not a distributor.

[00:26:35] Speaker 03:
I mean, it's a distributor of electricity, not a producer.

[00:26:38] Speaker 01:
Yes, Your Honor.

[00:26:40] Speaker 01:
So there's a question about the link with the collective bargaining, which is somewhat opaque.

[00:26:45] Speaker 01:
But if it doesn't connect to the collective bargaining,

[00:26:50] Speaker 01:
would suffice if it connect, for the purposes of the first part of the Jefferson Standard Test, it would suffice if there were a connection to the worker's interests in safety and not being yelled at by customers and whatever, is that right?

[00:27:06] Speaker 04:
Yes, your honor.

[00:27:07] Speaker 04:
And to be clear, the board's position is that the first part of the Jefferson standard test was not raised to the board as part of the loss of protection analysis.

[00:27:17] Speaker 03:
The line of questioning here suggests a different reading on the part of the judges.

[00:27:22] Speaker 04:
I understand, Your Honor.

[00:27:24] Speaker 04:
So well, I'll briefly defend it and move on then.

[00:27:27] Speaker 04:
But the board, again, this is a difference in burden of proof.

[00:27:32] Speaker 04:
These are two separate analyses.

[00:27:34] Speaker 04:
And the board addressed it as it was brought to the board, which was that this is part of the first initial step as to whether or not it's protected.

[00:27:41] Speaker 04:
The board addressed it in that context where the standard is different, where the standard is not related to necessary.

[00:27:47] Speaker 04:
It's not the same balancing test that happens under Jefferson's standard.

[00:27:51] Speaker 04:
And under whether it's protected or not, it's clear under the board's decision that this was related to employee concerns sufficiently.

[00:28:00] Speaker 03:
Can you give me a hypothetical of a disparaging statement by a self-identified union member?

[00:28:12] Speaker 03:
that would not be fully protected unless it was maliciously false, that would not be protected in the sense that no sanction can be imposed for it?

[00:28:27] Speaker 04:
Sure, Your Honor.

[00:28:27] Speaker 04:
There are a few in the case law, such as

[00:28:34] Speaker 04:
Let's see.

[00:28:35] Speaker 04:
There was one case, five-star transportation, where the board found that a statement, which was clearly made by a union member, that the buses were poorly maintained buses from a substandard company that employs criminals.

[00:28:51] Speaker 04:
That was a statement.

[00:28:53] Speaker 03:
So how does that relate to labor management relations?

[00:29:00] Speaker 03:
Sounds very close.

[00:29:04] Speaker 06:
Well, it was part of a employment.

[00:29:10] Speaker 03:
Your honor, as I understood your question.

[00:29:11] Speaker 03:
Do you think you're arguing for what sounds like a pretty absolute rule?

[00:29:17] Speaker 04:
No, your honor.

[00:29:18] Speaker 04:
Again, under direct TV, it is a balancing test against the interests.

[00:29:22] Speaker 04:
I do realize that the Eighth Circuit has

[00:29:27] Speaker 04:
stated that it thinks the rule is under Direct TV is an absolute rule, but it is a balancing test under Direct TV.

[00:29:35] Speaker 02:
You said it relates to employee issues, but isn't the test, whether it relates to a dispute, an employment dispute, is it enough under Jefferson's standard that it relates just to an employee issue?

[00:29:48] Speaker 04:
Your Honor, there aren't any cases that really differentiate enough between the two to... Where's a case where they've applied it to an employee issue that was not a dispute?

[00:30:02] Speaker 04:
Well, I guess, again, in DirecTV, this isn't a collective bargaining issue.

[00:30:05] Speaker 04:
This is a dispute.

[00:30:07] Speaker 02:
There was clearly a dispute between management employees.

[00:30:10] Speaker 02:
And in fact, that first prong at Jefferson Standard wasn't even in play.

[00:30:13] Speaker 02:
Everyone conceded that there was an ongoing labor dispute about their behavior and the effects on their paychecks and what they were being told to do.

[00:30:22] Speaker 02:
So is there a case where there was an employee issue, which is how you phrased it, that was not a dispute that satisfied Jefferson Standard?

[00:30:32] Speaker 04:
Not that I can think of off the top of my head, Your Honor.

[00:30:34] Speaker 02:
So it's not that they haven't distinguished, it's that there's no cases that have gone there.

[00:30:37] Speaker 02:
So we have to find, as Jefferson's standard articulated, that an employee-employer labor dispute that folks were put on notice of, the audience was put on notice of.

[00:30:48] Speaker 04:
Your Honor, I'm not really sure that there's a whole lot of difference between employee issues and an employee dispute.

[00:30:54] Speaker 04:
I don't think employees generally complain about their issues if there's not some kind of dispute with the employer about them.

[00:31:00] Speaker 04:
I don't have to complain.

[00:31:02] Speaker 02:
They could go testify just to use my information.

[00:31:04] Speaker 02:
I'm an expert.

[00:31:05] Speaker 02:
I do this every day.

[00:31:06] Speaker 02:
Let me tell you how it works.

[00:31:07] Speaker 02:
Here's what's going on.

[00:31:08] Speaker 02:
It doesn't mean I'm in a dispute.

[00:31:10] Speaker 02:
It doesn't affect my relationship with my employer, even if it's something of interest to the legislature.

[00:31:14] Speaker 02:
That can happen all the time.

[00:31:15] Speaker 04:
That can, but where would the alleged disparaging statement be in that analysis?

[00:31:19] Speaker 02:
We could have something that's maliciously false.

[00:31:22] Speaker 04:
So if an employee wins.

[00:31:25] Speaker 02:
The test, as I understand it from Jefferson's standard, it has to be involved in a dispute.

[00:31:30] Speaker 02:
And it's that dispute that the audience has to be on notice of, not that it relates to something that the employee does.

[00:31:38] Speaker 02:
Because as you just said, that'll be every case, or almost every case.

[00:31:42] Speaker 02:
It'll be something about what the employee does.

[00:31:43] Speaker 02:
So an employee issue is going to be very different.

[00:31:47] Speaker 02:
It's a much broader category than employment disputes.

[00:31:52] Speaker 04:
Well, that said, Your Honor, I do think here it's clear that Encore and the Union had a dispute over the smart meters.

[00:32:00] Speaker 08:
Where's it clear?

[00:32:01] Speaker 04:
It's clear from the Union.

[00:32:02] Speaker 04:
The Union has lobbied this exact committee over the smart meter issue.

[00:32:08] Speaker 04:
It has asked for this opt-out.

[00:32:10] Speaker 03:
Because of the dispute, which apparently is so far under the radar that

[00:32:15] Speaker 03:
But there's no bargaining related to it, except possibly in the peripheral term of the CBA.

[00:32:26] Speaker 04:
Not in this bargaining cycle, Your Honor, that's true.

[00:32:29] Speaker 03:
Any previous bargaining cycle?

[00:32:31] Speaker 04:
Well, I'm not sure they're in the record, but there is testimony in the record about the union having lost a lot of jobs to the smart meter deployment some number of years ago.

[00:32:43] Speaker 02:
Right, but that's the point.

[00:32:45] Speaker 02:
I assume that's what they were lobbying over.

[00:32:47] Speaker 02:
Is there any evidence that they were, within a year of this hearing, lobbying over employee safety in installing these things?

[00:32:56] Speaker 04:
not within a year of this hearing, Your Honor.

[00:32:59] Speaker 02:
Any evidence they were lobbying about employees having to put up with angry customers and the effect that has on their work environment?

[00:33:07] Speaker 01:
Also not within a year of this.

[00:33:09] Speaker 01:
What is the legislative context, just to remind us, because my understanding is that there was a

[00:33:14] Speaker 01:
clear battle lines and that the battle had gone on for a decade where Encore had testified, the union had testified in many different hearings on the question of the smart meters and the union was trying to say don't do, don't use these, they're killing our jobs and by the way, trying to get allies, they're terrible for you too, homeowners.

[00:33:41] Speaker 01:
What is the state of play that

[00:33:44] Speaker 01:
on that, in the context that would have been apparent to this very committee?

[00:33:49] Speaker 04:
Well, the context on that, Your Honor, is that the union had lost that battle, really, and that all the legislation allowing these smart meters to go into effect had been passed a few years prior.

[00:34:00] Speaker 04:
And at this point, the smart meter rollout was mostly completed.

[00:34:04] Speaker 04:
Encore had, I think, something like 8 million total to do, or something along, or the state of Texas, I guess, had some number of million, and there were only a few hundred thousand left.

[00:34:13] Speaker 04:
So the union had mostly lost this battle.

[00:34:16] Speaker 04:
This hearing comes around as an opportunity to at least reopen and gain an ally in getting some sort of opt out from some of that.

[00:34:25] Speaker 01:
How realistic was that?

[00:34:27] Speaker 01:
I mean, given your characterization, these smart meters are installed.

[00:34:31] Speaker 01:
It's somewhat quixotic to think there may have been some bill about giving consumers opt out, but it's not going to bring back jobs.

[00:34:40] Speaker 01:
virtually every household already has a smart meter.

[00:34:44] Speaker 01:
And maybe a couple of the people in that remaining tidbit of the market could say, oh, I want to keep my analog meter.

[00:34:52] Speaker 01:
But that's not going to bring back the rush of jobs, is it?

[00:34:54] Speaker 04:
Maybe not, Your Honor, but Section 7 protects employee activity regardless of its likelihood of success.

[00:35:01] Speaker 04:
And that is true in most cases where a union is lobbying or when an employee goes to testify and things like that.

[00:35:08] Speaker 02:
What's a union lobbying?

[00:35:11] Speaker 02:
at all at the time of this testimony, and I'll give you six months before, six months after, whatever, were they, well, I guess not after, but six months or even a year before, were they still lobbying or were they done?

[00:35:21] Speaker 02:
As you said, they sort of lost the battle and moved on.

[00:35:24] Speaker 04:
Well, Your Honor, they were mostly, I don't think there was any direct lobbying within six months, but they were still keeping abreast of what was happening.

[00:35:32] Speaker 02:
Okay, but keeping abreast.

[00:35:33] Speaker 02:
But that's not the same thing as,

[00:35:36] Speaker 02:
I'm sure the unions keeping abreast of this thing that's part of their job, but that's not the same thing as putting anybody on notice that there's an ongoing labor dispute over this issue, these meters.

[00:35:49] Speaker 04:
Well, Mr. Reed did find out about the hearing in the first place from the union's attorney who forwarded him the hearing notice.

[00:35:57] Speaker 02:
I get that.

[00:35:58] Speaker 02:
The audience didn't know that, right?

[00:36:00] Speaker 02:
The audience to which he testified.

[00:36:01] Speaker 02:
I think I thought we were asking here what the audience to which he testified would have known.

[00:36:05] Speaker 04:
I don't think there are any record communications in the past six months between the union and... Right here?

[00:36:12] Speaker 02:
I'm just trying.

[00:36:12] Speaker 02:
I don't know when the last lobbying communication was.

[00:36:15] Speaker 04:
The last ones that are in the record I think was about two years before.

[00:36:19] Speaker 04:
this statement.

[00:36:21] Speaker 04:
But there's no reason, you know, the union at no point said to the committee, we have abandoned this issue and we're not going to, smart leaders are no longer.

[00:36:30] Speaker 03:
It might have said, we're still hoping for some gains from suitable legislation and we're, and actually we feel that pressure from the legislature would make Encore yield in various things we're actually bargaining about.

[00:36:49] Speaker 03:
That would have been the candid thing to do.

[00:36:51] Speaker 03:
I understand the act doesn't require a can there.

[00:36:56] Speaker 04:
Yes, they could have said that, but that wouldn't be tailoring their message to the audience.

[00:37:01] Speaker 04:
There's no reason the audience would really care.

[00:37:04] Speaker 03:
At that point, cluing the audience in on what it was really about would be...

[00:37:12] Speaker 02:
What is the point of that first crime, the Jefferson standard test, having to let people know about an ongoing labor dispute?

[00:37:19] Speaker 02:
Is it to disclose your conflict of interest, or is it just to substantively connect the testimony with protected activity?

[00:37:29] Speaker 04:
Your Honor, it's to balance against the later two issues as to whether it was maliciously untrue or disparaging.

[00:37:38] Speaker 04:
In other words, if there is

[00:37:41] Speaker 04:
If the listener knows that there is a large labor dispute going on and these two sides hate each other and they're lobbing things back and forth, something that was otherwise disparaging might seem a little bit less so.

[00:37:53] Speaker 04:
And so the three prongs are you determine first the level of employee interest, and you need that for the proportionality.

[00:37:58] Speaker 03:
It wouldn't seem less disparaging, but it might seem less credible.

[00:38:02] Speaker 03:
Isn't that the point?

[00:38:03] Speaker 03:
Well, to me, that was what the court in Jefferson Standard was driving at.

[00:38:08] Speaker 04:
That could be true.

[00:38:08] Speaker 04:
Yeah.

[00:38:09] Speaker 04:
That's credible.

[00:38:10] Speaker 04:
Um, but the, uh, the effect for incredible testimony, the likely effect on the audience is really the focus of Jefferson's standard and how likely the audience is to take this with a grain of salt.

[00:38:22] Speaker 04:
Um, and

[00:38:23] Speaker 04:
Here, again, the second part of that, the second part of that balancing the level of disparagement, he's not going out and taping flyers on doors saying, encore smart meters are going to make you sick.

[00:38:36] Speaker 04:
He didn't do anything like that.

[00:38:37] Speaker 04:
He testified before a committee that was having a hearing on the issue, and he didn't limit his statements to encore.

[00:38:44] Speaker 04:
He did as fair of a job as he could in terms of testifying broadly about the issues.

[00:38:50] Speaker 02:
So it seems like the issue with the content of his testimony is that he did his homework before he went in.

[00:38:58] Speaker 02:
He talked to people.

[00:38:59] Speaker 02:
He realized there was a widespread problem.

[00:39:02] Speaker 02:
Then he came in, and he said he'd had these problems, and he'd seen these things burning up.

[00:39:09] Speaker 02:
But then it turned out the tickets didn't actually reveal that information.

[00:39:13] Speaker 02:
Does that count?

[00:39:19] Speaker 02:
And it's false.

[00:39:20] Speaker 02:
A problem is actually happening.

[00:39:24] Speaker 02:
But you weren't a firsthand witness, but you get up and testify as though you were a firsthand witness to it, because you talked to a bunch of people.

[00:39:32] Speaker 02:
Does that count as false?

[00:39:33] Speaker 02:
It's false in the sense that he purported to be testifying about personal experience, but it wasn't actually personal experience.

[00:39:39] Speaker 02:
On the other hand, the meat of the matter, these things are burning up, seems to at least have evidence in the record.

[00:39:47] Speaker 04:
Well, Your Honor, when he testified about these things that are burning up and causing damage to people's homes, that testimony was not linked only to his personal experience.

[00:39:58] Speaker 04:
His personal experience was the first part of his testimony where he talked about going to a customer's home and having to tell her that her meter base was burnt up and that she would have to replace it.

[00:40:08] Speaker 04:
And so... Well, not just that.

[00:40:10] Speaker 02:
I noticed that the tickets I worked on or the work orders that I went out on were beginning to be increasingly of the meters burning up.

[00:40:16] Speaker 02:
and burning up the meter bases.

[00:40:18] Speaker 02:
So that's before he starts telling the story about the lady.

[00:40:22] Speaker 02:
That's true, your honor.

[00:40:23] Speaker 02:
Was that true?

[00:40:24] Speaker 04:
Well, his tickets do show damage to meter bases.

[00:40:27] Speaker 04:
He identified a few.

[00:40:29] Speaker 04:
It's not clear that the smart meter caused those from his tickets, but it's also not clear.

[00:40:35] Speaker 02:
Increasingly of the meters.

[00:40:36] Speaker 02:
So let's just assume that maybe that was

[00:40:40] Speaker 02:
not so accurate.

[00:40:42] Speaker 02:
As to his personal experience, but he at least had heard from other people when the fire marshal that this was going on.

[00:40:49] Speaker 02:
So

[00:40:52] Speaker 03:
I don't know.

[00:40:53] Speaker 02:
I'm baffled by it.

[00:40:57] Speaker 02:
You heard from his personal experience that others were having this problem.

[00:40:59] Speaker 02:
So what does, does that count?

[00:41:03] Speaker 02:
I just don't understand.

[00:41:03] Speaker 02:
I didn't see the board wrestling with that issue.

[00:41:06] Speaker 02:
I can imagine a union person sort of taking it on to protect the identity of other people who don't want to be named in testimony.

[00:41:14] Speaker 02:
I just don't know how the false prong works in a context like this.

[00:41:17] Speaker 04:
Well, Your Honor, it has to be maliciously or recklessly false.

[00:41:21] Speaker 04:
So in this case, there's no malicious act in presenting something that he thinks is true, but might be perhaps somebody else's testimony as well.

[00:41:29] Speaker 02:
Well, he didn't think it was true as to his personal experience, but he thought it was true because it was happening to his colleagues and people in the union knew about it and the fire marshal knew about it.

[00:41:38] Speaker 04:
But, Your Honor, he may have actually thought it was true about his personal experience, and he certainly testified at the trial here that he did, because he testified that he had these increasing tickets, and maybe his tickets didn't show an increase, but if you know that you've had tickets about meter bases and damage to them, and then you go on and talk to a bunch of people who say that this has been an increasing problem of late.

[00:42:01] Speaker 04:
quite reasonable to think back and think, oh, yeah, maybe my meter tickets were increasing, even if he didn't review them ahead of time and he didn't know that the data might not exactly, precisely back that up.

[00:42:14] Speaker 04:
So I don't think that's, yeah, I guess I reject the premise that he knew that what he was saying was not true in terms of his own personal experience.

[00:42:22] Speaker 03:
He didn't show much interest in the truth, though.

[00:42:25] Speaker 03:
He didn't pursue the matter as someone determined to get to the bottom of it, would he?

[00:42:32] Speaker 04:
Your Honor, he talked to a fire marshal before he went up there.

[00:42:35] Speaker 04:
He talked to another union local, Local 66 in Houston.

[00:42:40] Speaker 03:
But I wasn't using this kind of meter.

[00:42:42] Speaker 04:
But none of his testimony refers to any particular kind of meter.

[00:42:47] Speaker 04:
They were using smart meters.

[00:42:49] Speaker 04:
It's just not the same brand that Encore uses.

[00:42:52] Speaker 04:
And at no point during his testimony is he talking about any particular brand of smart meter, the Landis and Gere or otherwise.

[00:43:00] Speaker 04:
And the third thing he did was he talked to the people in his repair shop who then told him that they had been receiving more damaged meter bases coming back for repairs.

[00:43:12] Speaker 01:
So, I mean, he had, so she has insights.

[00:43:17] Speaker 01:
having talked to the fire department, having talked to Local 66, his own experience, the council steward had said there were five lawsuits from homeowners based on damage and fires, and I thought the supervisors, Efflin and Anderson, had also acknowledged that there were some fires started by these bases and or meters.

[00:43:43] Speaker 04:
Yes, Your Honor.

[00:43:43] Speaker 01:
So there's some factual grounding for his testimony, if it's not record.

[00:43:50] Speaker 04:
Yes.

[00:43:54] Speaker 06:
All right.

[00:43:55] Speaker 04:
Thank you very much.

[00:43:55] Speaker 04:
If the court has no further questions, thank you, Your Honor.

[00:44:05] Speaker 07:
Good morning.

[00:44:06] Speaker 07:
May it please the court?

[00:44:07] Speaker 07:
I'm Hal Gillespie from Dallas, Texas.

[00:44:09] Speaker 07:
I do represent IBW Local 69.

[00:44:11] Speaker 07:
I'd like to

[00:44:14] Speaker 07:
start out by saying, uh, this is taking a long time.

[00:44:17] Speaker 07:
It's a five year process since Mr Mr Reed was invited to go to actually told he should go to Austin to testify if that's what he thought he should do.

[00:44:28] Speaker 07:
Uh, and then he got fired for doing what he was told he should do.

[00:44:32] Speaker 07:
He's a 34-year employee when he's fired.

[00:44:35] Speaker 07:
And so I want to frame this two minutes that I've got, which was the same amount of time that he had, with saying that what's at issue here is how fragile are the rights that you have when you're engaged in protected, concerted activity?

[00:44:50] Speaker 07:
How fragile are they because of the Jefferson standard two-pronged test?

[00:44:54] Speaker 07:
And I suggest that they're not fragile.

[00:44:56] Speaker 07:
They shouldn't be fragile.

[00:44:58] Speaker 07:
And I want to really focus on Judge Millett's question and Judge Williams' question, because I think there's an interplay between them.

[00:45:06] Speaker 07:
Judge Williams' question, I think the very first of the day, was how do you get the union committee or the legislature on notice that there's really a labor dispute here about this?

[00:45:17] Speaker 07:
And then your question was, what's the interplay?

[00:45:20] Speaker 07:
What's the purpose of the first prong of Jefferson standard?

[00:45:23] Speaker 07:
And those two go together.

[00:45:26] Speaker 07:
And I want to address yours first, Your Honor.

[00:45:28] Speaker 07:
The purpose of the first prong is because there is a balance.

[00:45:33] Speaker 07:
And the balance is between giving context to the listener so that they know that these statements by Bobby Reed, who's sitting out there today, these statements by Mr. Reed

[00:45:46] Speaker 07:
are in the context, I'm saying this as a union representative.

[00:45:51] Speaker 07:
And so that way, if there is something disparaging, it's not considered to be as harmful.

[00:45:57] Speaker 07:
That's the purpose of it.

[00:45:59] Speaker 07:
And then the other part of it, the other prong on Jefferson's standard is how disparaging is it?

[00:46:03] Speaker 02:
Well, on your understanding of that first prong, then it sounds to me like it's completely redundant of the first prong getting this stuff protected in the first place.

[00:46:13] Speaker 02:
It has to be collective action.

[00:46:15] Speaker 06:
Well, that's not quite.

[00:46:16] Speaker 02:
I wish it were.

[00:46:17] Speaker 02:
Well, it has to be collective action, and you said if he's there testifying in his capacity as a union member, which is going to make it collective action, that's also going to satisfy the first prong of Jefferson's standard.

[00:46:28] Speaker 02:
At least the case law so far, to me, sounds like it's a little more specific.

[00:46:32] Speaker 07:
I think Judge Williams' question suggested and implied that it is more specific.

[00:46:37] Speaker 07:
And that's why I want to go there.

[00:46:39] Speaker 07:
OK.

[00:46:40] Speaker 07:
But I do want to, and I'll go there.

[00:46:42] Speaker 07:
I do want to set this up with just a really quick anecdote.

[00:46:47] Speaker 07:
If you're told to do something and then you do it and then you get fired for doing it, the person.

[00:46:52] Speaker 03:
What's it?

[00:46:53] Speaker 07:
Oh, OK, it is to testify.

[00:46:55] Speaker 02:
He wasn't told to testify.

[00:46:56] Speaker 02:
He was like, go ahead and do it.

[00:46:57] Speaker 02:
Go ahead and do it if you think you need to do it.

[00:46:59] Speaker 07:
No, Your Honor, let me go to what the record is on this.

[00:47:02] Speaker 07:
On August the 23rd

[00:47:06] Speaker 07:
that they met, the union and the company met, to talk about how are we going to negotiate.

[00:47:12] Speaker 07:
And they set up their first negotiation session for October the 8th.

[00:47:15] Speaker 07:
But on August 23rd, when they had that meeting, Davis, who was the director of labor and employee relations for the company, says, we're going to be dealing with smart meters at the upcoming legislative session.

[00:47:28] Speaker 07:
So the very first negotiation session, which is October the 8th, the day before that legislative session,

[00:47:35] Speaker 07:
The read says if we're here to make a deal, if we can't make a deal today, I'm going to Austin tomorrow to testify on not smart meters.

[00:47:45] Speaker 07:
And so, Your Honor, you were asking whether there was anything to do with bargaining and smart meters.

[00:47:50] Speaker 07:
Everything was to do with it.

[00:47:51] Speaker 07:
Because literally, had there been a deal made on October the 8th, there's no testimony in Austin by Reed.

[00:48:00] Speaker 01:
Can you explain the relation?

[00:48:02] Speaker 01:
I'm sorry, go ahead.

[00:48:03] Speaker 03:
All you're saying is that the testimony was 11.

[00:48:07] Speaker 03:
At least what you're just recounting.

[00:48:10] Speaker 03:
You may wish to imply more, but... No, I'm not quite through with the sequence.

[00:48:15] Speaker 07:
The next sequence was after he says, I'm going to be in Austin to testify about smart meters.

[00:48:19] Speaker 07:
Davis says, is that a threat?

[00:48:22] Speaker 07:
Reed says, no.

[00:48:23] Speaker 07:
Davis says, and this is absolutely key, says, if you think you need to testify, that's what you need to do.

[00:48:29] Speaker 01:
I don't see that.

[00:48:32] Speaker 01:
You do what you need to do.

[00:48:34] Speaker 01:
You're going to make your decision and take the consequences.

[00:48:37] Speaker 01:
I don't see that as any promise.

[00:48:39] Speaker 00:
That's like make my day.

[00:48:40] Speaker 01:
I don't see that as any promise that that's protected or anything.

[00:48:44] Speaker 01:
But I do see the connection.

[00:48:45] Speaker 01:
If Davis is referring to the very hearing that he says is related.

[00:48:51] Speaker 01:
I'd like to know more about what your view is of the relationship between the one-year extension and whatever pending legislation.

[00:48:58] Speaker 07:
Well, had there been a deal on October the 8th, there's no testimony by Reid in Austin.

[00:49:04] Speaker 02:
But when he goes to Austin... That's just the, as Judge Williams said, the lever point.

[00:49:08] Speaker 02:
And in Jefferson Standard itself, it's specifically said that hope for financial pressure on the employer as a result of testimony is not

[00:49:19] Speaker 02:
That is not acceptable.

[00:49:22] Speaker 07:
I want to keep going on.

[00:49:23] Speaker 02:
I understand.

[00:49:24] Speaker 07:
And I'm going to answer both your questions by focusing on what Mr. Reed did to put the committee on notice that there was a labor dispute over smart meters.

[00:49:34] Speaker 07:
He said something, and he did something.

[00:49:38] Speaker 07:
And he only had two minutes to act.

[00:49:39] Speaker 07:
But before those two minutes began, look at the record, page 451.

[00:49:44] Speaker 07:
That's an important page.

[00:49:46] Speaker 07:
Because on that page, you've got a witness list.

[00:49:49] Speaker 07:
This is on the record.

[00:49:51] Speaker 07:
On smart meters, there's an against.

[00:49:53] Speaker 02:
I'm sorry, which page?

[00:49:54] Speaker 07:
I want to make sure we're on the same page.

[00:49:56] Speaker 07:
451.

[00:49:57] Speaker 07:
There's an against, and there's then on, and Bobby Reed signs up, self, semicolon, IBEW local, 69, Dallas, Texas.

[00:50:07] Speaker 07:
And then when he testified, and you've got that in the record, that's on page 12 of the record where the full speech, the two-minute speech is in the record.

[00:50:20] Speaker 07:
He starts out by saying, I became a representative for our local union there in Dallas last April.

[00:50:26] Speaker 07:
So he's testifying that he is Bobby Reed.

[00:50:28] Speaker 07:
He is a representative of the union.

[00:50:30] Speaker 07:
And then right after he signs up, Encore signs up as four smart meters.

[00:50:36] Speaker 07:
This is a legislative committee that has been lobbied in the past to have an opt in, sorry, an opt out procedure.

[00:50:44] Speaker 07:
And your honor, Judge Pillar, you asked, wouldn't that be futile?

[00:50:49] Speaker 07:
It's really not.

[00:50:49] Speaker 07:
I mean, the option here was to have you opt out, retestify in this short two minutes that what's going on is they have to replace a lot of these things.

[00:50:58] Speaker 07:
They're burning up.

[00:51:00] Speaker 07:
And so when you go out there, they need to be replaced either with a digital

[00:51:04] Speaker 07:
smart meter or with an analog smart meter.

[00:51:06] Speaker 07:
So an option is to replace these things with the analog ones that don't catch on, that don't, the meter bases don't burn.

[00:51:14] Speaker 01:
So.

[00:51:15] Speaker 01:
And what about this one year?

[00:51:16] Speaker 01:
Is the

[00:51:20] Speaker 01:
I don't entirely, I mean, I see there's these two prongs here.

[00:51:24] Speaker 01:
One, if it relates to collective bargaining, and two, if it relates in some other way to employee interests and protection.

[00:51:32] Speaker 01:
And I see that the board has relied on those two as alternative grounds, with one of the members dissenting from the leverage point.

[00:51:43] Speaker 01:
On the,

[00:51:45] Speaker 01:
The collective bargaining connection, the employer says, well, things are up in the air, we want to wait a year.

[00:51:53] Speaker 01:
Why?

[00:51:53] Speaker 01:
How is that going to clarify things and affect the context of the negotiation?

[00:51:59] Speaker 07:
The context was we want a short contract, we being the company, we want a short contract because there may be some changes in the legislature on smart meters and that may affect

[00:52:10] Speaker 07:
how long we want this contract to go.

[00:52:12] Speaker 07:
So that was the context of it.

[00:52:15] Speaker 07:
And Reed, who was trying to get a deal done on October the 8th, we mean that's not realistic, but he wanted to do that, doesn't get that done, does go to Austin.

[00:52:27] Speaker 07:
And the committee, the legislature can put two and two together.

[00:52:29] Speaker 07:
They have common sense.

[00:52:31] Speaker 07:
They know that the union, this is the union, IBW.

[00:52:35] Speaker 07:
It's a statewide type deal.

[00:52:36] Speaker 07:
They've got one local here in Dallas, but they represent people all over Texas.

[00:52:40] Speaker 07:
And they've been trying to get the legislature to focus on smart meters.

[00:52:44] Speaker 07:
And Senator Corona literally said to him, to Reid during the short two minutes, said in response to what Reid said, that's interesting.

[00:52:52] Speaker 07:
That will be something we will want to take a little further, want to look at a little further, I'm sure.

[00:52:58] Speaker 07:
So there was an interplay between them, and he's talking for the union about problems with smart meters, and the company's about to get up, and they did get up, and they talked in favor of smart meters, and you asked who was the audience.

[00:53:11] Speaker 07:
The audience was not just the legislature, it was the public, and it was that on-car guy who was sitting out there about to speak, and who went back and told on him by saying, hey, Bobby Reed testified, you want to listen to what he said.

[00:53:25] Speaker 07:
And so when you ask whether or not that's disparaging, it could hardly be disparaging when when when Kyle Davis knows Bobby Reid, if he goes to Austin and testifies about smart meters, he's not going to be saying I love him.

[00:53:40] Speaker 07:
He's going to be saying there are problems with him.

[00:53:45] Speaker 03:
You're taking this account as nullifying the disparaging, you know, I'm saying that not not that it could hardly be disparaging.

[00:53:57] Speaker 07:
Davis said such as I'm saying the company could not would not reasonably view it as disparaging if it literally

[00:54:06] Speaker 07:
said, if you want to testify about him, go, knowing that Bobby Reid would have an opposing view of smart leaders.

[00:54:13] Speaker 07:
Bobby Reid would be saying, as the IBW, we want you to be able to opt out of having smart leaders.

[00:54:18] Speaker 01:
And indeed, there's been a long history.

[00:54:20] Speaker 01:
I was just looking at JA 384, the email from Bobby Reid in his capacity as the business manager of the union to legislative staff.

[00:54:33] Speaker 01:
the prior year talking about how the union is working diligently to get HB3205 to a hearing and how the safety issues, the defective smart meter issues are of importance to the union, the burning up and all of that.

[00:54:50] Speaker 01:
So there's a history here between this committee and

[00:54:54] Speaker 01:
the union and the union's position is understood as a labor position about the nature of the jobs, the number of the jobs, the safety of the jobs.

[00:55:05] Speaker 07:
This all connects to another question you asked and that was who's got the burden on this.

[00:55:09] Speaker 07:
The burden of proof on this is on the employer who's trying to take away protection of the Act for the head guy in the union who's down there talking on behalf of the union.

[00:55:19] Speaker 02:
Can I get back to the email Judge Pele just referenced and it says

[00:55:23] Speaker 02:
They were working diligently to get HB3205 to a hearing.

[00:55:27] Speaker 02:
Was the hearing that happened the next year on HB3205 or was it on a specific bill or was it just investigatory?

[00:55:34] Speaker 07:
It was on problems with smart meters.

[00:55:36] Speaker 02:
It wasn't on a bill.

[00:55:37] Speaker 02:
What did HB3205 do?

[00:55:39] Speaker 02:
It could have led to a bill.

[00:55:41] Speaker 02:
There was an HB3205 he was talking about the year before.

[00:55:46] Speaker 02:
We will continue to work diligently to get HB3205 to a hearing.

[00:55:50] Speaker 02:
What did HB3205 do?

[00:55:53] Speaker 07:
But I don't think that was a bill that was live at that committee.

[00:55:58] Speaker 07:
I think that what was going on with the committee was it was an open forum for people, the public to come in and the public included the union to come in and say, hey, there's problems or there are problems with smart leaders.

[00:56:10] Speaker 07:
And so when the board heard this, the board has common sense just as the legislature does.

[00:56:19] Speaker 07:
The board, the LRB, listened to all this evidence, and they had sufficient evidence that both prongs of Jefferson standard had been met.

[00:56:27] Speaker 03:
Just to be clear, you're not arguing that we would have gone to Austin and given this testimony if a collective bargaining agreement

[00:56:39] Speaker 03:
You're not saying that Reed would have gone to Boston on that day if a CBA had been reached.

[00:56:50] Speaker 03:
In fact, I take it you'd be emphasizing the opposite.

[00:56:52] Speaker 03:
If a CBA had been reached, no way he would have gone to Boston.

[00:56:57] Speaker 07:
That's what he literally said.

[00:56:58] Speaker 07:
That's what the record shows.

[00:57:01] Speaker 07:
He said that, and then he was told to go.

[00:57:04] Speaker 03:
And yet there's no clause of a photo of her in connection with the CBA, but it relates at least in a direct way.

[00:57:15] Speaker 07:
A CBA, an overall CBA is based upon

[00:57:19] Speaker 07:
everything in it.

[00:57:21] Speaker 07:
And it's not uncommon, Your Honor, as a union lawyer, I can say this, for a union to say, I have an agenda, and the main agenda is to get a good contract for our people.

[00:57:34] Speaker 07:
But if there's not going to be a good contract for our people, let's deal with more issues than we're dealing with right now.

[00:57:39] Speaker 07:
And this was their first bargaining session.

[00:57:42] Speaker 02:
There's no finding by the board that this was an effort to get the smart meter topic on the collective bargaining table.

[00:57:53] Speaker 02:
What's there?

[00:57:54] Speaker 02:
I mean, the problem with the leverage thing, which Mr. Reed was explicit about in the board address, is that seems to be in the teeth of Jefferson's standard, that you can't simply use it as an arm-twisting hope for pressure on the employer.

[00:58:11] Speaker 02:
So we can't do that, so we really, we have to read, we're bound by Jefferson's standard here, so we're not the audience that can change that.

[00:58:18] Speaker 02:
And that seems to require,

[00:58:21] Speaker 02:
a more direct or explicit connection, and we're kind of struggling with that.

[00:58:25] Speaker 07:
I think that our focus is too narrow here.

[00:58:28] Speaker 07:
If you look at the Second Circuit Misery Accordia Hospital, it's hard work for me to say.

[00:58:35] Speaker 07:
It sounds like a terrible name for a hospital.

[00:58:36] Speaker 07:
But in that case, the nurses went out and wrote a report that said it's not sanitary, it's not safe, it's not good stuff, wrote a report, and they got called in after writing the report and said, if you wrote it, you should resign.

[00:58:49] Speaker 07:
And then they found out who wrote it and they fired some people.

[00:58:52] Speaker 07:
Imagine if the same people who wrote that report had been told,

[00:58:57] Speaker 07:
We wrote a report.

[00:59:00] Speaker 07:
We wrote a report, and then they got fired.

[00:59:03] Speaker 07:
They were engaged in a dispute with the hospital about conditions.

[00:59:08] Speaker 02:
Well, it starts to sound like we're merging whistleblowing into collective bargaining, right?

[00:59:13] Speaker 02:
No.

[00:59:13] Speaker 02:
When we think about nurses coming out saying, hey, this place is unsanitary, assume it doesn't, that probably has health effects on them, but assume it didn't, or they're just complaining about bad bedsheets.

[00:59:24] Speaker 02:
that give people bed sores.

[00:59:27] Speaker 02:
That's what they're complaining about.

[00:59:28] Speaker 02:
It sounds like whistle blowing.

[00:59:29] Speaker 02:
They're not negotiating, presumably at the union, about the bed sheets for the patients.

[00:59:33] Speaker 02:
It sounds like whistle blowing for consumer issues.

[00:59:36] Speaker 07:
Isn't that what's going on here?

[00:59:37] Speaker 07:
It's considered an activity.

[00:59:40] Speaker 02:
The point here is that Jefferson's- Well, nothing considered activity, but we still have to deal with it, putting the audience on notice that I'm here testifying about a dispute with my employer as opposed to I'm here whistleblowing about a problem for consumers that I happen to be a firsthand witness to.

[00:59:55] Speaker 07:
In two minutes, possibly, he could have said, I'm here for the union.

[00:59:57] Speaker 07:
I want to tell you, the union has historically had problems with smart meters.

[01:00:00] Speaker 07:
We think they're a bad idea.

[01:00:02] Speaker 07:
There are problems with them.

[01:00:03] Speaker 07:
We think that as a union.

[01:00:04] Speaker 07:
We've raised that with the company.

[01:00:06] Speaker 07:
And the company's about to speak, and it's going to say that they're good.

[01:00:09] Speaker 07:
He could have said all that and how those people might have been able to say that.

[01:00:13] Speaker 02:
Why do they think they're a bad idea?

[01:00:14] Speaker 02:
They're bad for customers?

[01:00:17] Speaker 07:
Yeah, they keep having problems.

[01:00:20] Speaker 07:
They keep overheating.

[01:00:21] Speaker 07:
Customers, right.

[01:00:22] Speaker 07:
And that's for customers.

[01:00:23] Speaker 07:
That's also a problem for the employees because they've got to go out and they've got to fade the heat.

[01:00:27] Speaker 07:
I mean, pardon the pun, but they've got to go out and deal with the unhappy widow woman who is not only

[01:00:33] Speaker 07:
lost her electricity, but now has to go out and spend some of her money buying a new meter.

[01:00:38] Speaker 01:
Well, I'm understanding this through the lens of what the board says and what the record appears to support, which is that Reed's testimony concerning smart meters and meter bases related to and was spurred by an ongoing legitimate concern of the union about the safety of represented bargaining unit employees working with the meters, particularly given the hazards of electrical arcs.

[01:01:02] Speaker 01:
It's not disputed the safety of the new devices.

[01:01:04] Speaker 01:
Two workers was one of the reasons the union's attorney informed Reid of the upcoming Senate hearing.

[01:01:10] Speaker 01:
Supervisor Anderson admitted that there were troubleman complaints, and there's another supervisor who...

[01:01:17] Speaker 01:
who acknowledged that.

[01:01:19] Speaker 01:
So I take it to be overlapping.

[01:01:21] Speaker 01:
It is both a consumer homeowner concern and it is a worker concern whether or not directly related to the collective bargaining it is something that the union cares about on behalf of its workers.

[01:01:36] Speaker 01:
Is that a different

[01:01:37] Speaker 01:
theory from the one you're proposing?

[01:01:39] Speaker 07:
No, I think it fits into it.

[01:01:41] Speaker 07:
It's a union concern, it's a worker concern.

[01:01:44] Speaker 07:
There was a problem with ARCs.

[01:01:45] Speaker 07:
Bobby Reed testified that he had been burned by an ARC, and his son had been burned by an ARC, and he testified that an ARC is a ball of fire.

[01:01:52] Speaker 02:
He didn't testify to the Senate about that.

[01:01:54] Speaker 02:
I'm sorry?

[01:01:54] Speaker 02:
That wasn't testimony he gave to the Senate.

[01:01:56] Speaker 07:
At the hearing he said, I know a thing about hate, about

[01:02:00] Speaker 07:
Fire and heat, right.

[01:02:01] Speaker 02:
But he didn't say... That's correct.

[01:02:03] Speaker 07:
And in just two minutes, he didn't do what he did in two days in front of the board.

[01:02:06] Speaker 02:
Let's not confuse the two different testimonies.

[01:02:08] Speaker 07:
But he also testified about them taking jobs.

[01:02:10] Speaker 07:
I mean, there are jobs that the smart meters are costing jobs to folks.

[01:02:15] Speaker 07:
And now that was testimony that certainly came up in front of the board.

[01:02:18] Speaker 07:
I'm not sure that that's been his two-minute speech to the Commission.

[01:02:22] Speaker 01:
And the two minutes that you've had here today, that's a different two minutes from the one that probably Reid had before.

[01:02:27] Speaker 07:
You gave me so much time.

[01:02:28] Speaker 07:
I really want to thank you.

[01:02:30] Speaker 07:
Thank you.

[01:02:31] Speaker 02:
Thank you very much.

[01:02:34] Speaker 02:
I think Mr. Lonigan used up all his time.

[01:02:37] Speaker 02:
We'll give you three minutes for rebuttal.

[01:02:47] Speaker 05:
Just a couple of things, actually, to start off with, if I may, Your Honor.

[01:02:53] Speaker 05:
Your Honor, the memo that you mentioned from Reid to the

[01:03:01] Speaker 05:
Joint exhibit 384, smart meters in the local, that's not an encore issue.

[01:03:09] Speaker 05:
That's that separate I-Tron meter, the one that you asked Mr. Gillespie about.

[01:03:14] Speaker 02:
Sorry, are you talking about the email?

[01:03:16] Speaker 05:
Yeah, I'm sorry, yes, your honor.

[01:03:19] Speaker 01:
And your point about it is?

[01:03:20] Speaker 05:
Well, just, I didn't want that.

[01:03:23] Speaker 01:
That it's a center point?

[01:03:24] Speaker 05:
Yes, that's not an encore matter, and that's not an encore type meter.

[01:03:30] Speaker 01:
Well, I don't think it's talking about a particular meter.

[01:03:34] Speaker 01:
The issue of smart meters and he's talking about connecting with Local 66.

[01:03:38] Speaker 01:
Yeah, we get that there are different models and that the company is paying attention to the safety of maybe a differential between the different models.

[01:03:47] Speaker 05:
Also, there was some merging between employee health or I'm not sorry, but public health and public safety.

[01:03:54] Speaker 05:
J 443 is a letter from the lieutenant governor that's that sets out that this is strictly hearing looking into the health.

[01:04:02] Speaker 02:
That's right.

[01:04:02] Speaker 02:
What page is that?

[01:04:03] Speaker 05:
That's 443, your honor.

[01:04:06] Speaker 05:
I'm sorry, looking into help to help to not jeopardize the health of Texans.

[01:04:14] Speaker 05:
There was some.

[01:04:15] Speaker 02:
Well, that would include the employees.

[01:04:18] Speaker 05:
Yeah, and then it goes on talking about the public.

[01:04:20] Speaker 05:
But there was some issue with that.

[01:04:22] Speaker 05:
That committee was tasked to look into safety, and it was a it was a health

[01:04:27] Speaker 02:
Well, safety is part of health, right?

[01:04:29] Speaker 02:
I mean, right?

[01:04:30] Speaker 02:
Exposure to health risk would be part of health and also a safety issue.

[01:04:35] Speaker 02:
I'm not sure we can divide the world quite as neatly.

[01:04:37] Speaker 05:
Okay.

[01:04:39] Speaker 05:
Um, then the other the other things quickly factually.

[01:04:43] Speaker 05:
was that, which I really don't have time to make, but the ALJ opinion adopted by the board did talk into the fact that smart meters, in fact, don't cause these things.

[01:04:55] Speaker 05:
But I'll let that speak, because I do want to address, in the minute I have left here, the Endicott-Jefferson standard direct TV, Mountain Shadows, all hold, the Supreme Court, this court, and the board, that it's got to be apparent on its base that it's related to a labor dispute.

[01:05:12] Speaker 05:
And that clearly wasn't done here.

[01:05:14] Speaker 02:
What do they say on its face?

[01:05:16] Speaker 05:
Pardon?

[01:05:16] Speaker 02:
What language are we relying on?

[01:05:18] Speaker 05:
Bob's looking at a parent, Your Honor.

[01:05:20] Speaker 02:
Right, a parent doesn't always, things can be a parent without being on the face of something.

[01:05:26] Speaker 05:
Yes, but I don't think they let the fact that there's a labor dispute out in the

[01:05:30] Speaker 05:
in the environment be that evident?

[01:05:33] Speaker 01:
Why not?

[01:05:34] Speaker 01:
I mean, as I read DirecTV, the interest, which is a quite understandable one, is in allowing those who hear this testimony to put it in context so that they know the interest

[01:05:54] Speaker 01:
of the person giving a testimony.

[01:05:57] Speaker 01:
Oh, well, he's a labor leader.

[01:05:58] Speaker 01:
We know he's against this computerization.

[01:06:01] Speaker 01:
It's cutting into his jobs.

[01:06:03] Speaker 01:
We're gonna take what he says with a grain of salt, given this battle against smart meters, period.

[01:06:11] Speaker 01:
And that makes us look differently at it from, for example, if he is a technology expert or a doctor in the local emergency room,

[01:06:20] Speaker 01:
doesn't have that interest, and we're going to say, wow, if the local emergency room doc is down there testifying about safety issues, I, as a homeowner, might be more concerned.

[01:06:30] Speaker 01:
So I think it's actually quite relevant.

[01:06:34] Speaker 01:
It's the question of a reasonable observer.

[01:06:36] Speaker 01:
No?

[01:06:36] Speaker 05:
Well, a reasonable observer would think he's a 34-year-old employee, says he knows about fire and heat, and that these things are causing damage to people's homes.

[01:06:46] Speaker 05:
I think I get that communication, but he never says,

[01:06:49] Speaker 05:
I'm testifying as part of the labor dispute.

[01:06:51] Speaker 05:
He never, and I understand that's from that point, he introduced himself as a union business manager, but he never says this is a dispute or an ongoing battle with the company.

[01:07:00] Speaker 05:
In fact, it wasn't.

[01:07:02] Speaker 01:
My question is a little bit more general, which is shouldn't we look at the testimony in the context

[01:07:09] Speaker 01:
that would be known to a reasonable observer because the logic of this requirement that his role be apparent is to allow assessment and appropriate skepticism.

[01:07:23] Speaker 05:
Well, I think Jefferson's standards said no, Your Honor, and the fact that there's an off point, people may know the dispute, but the communication has to be, has to link the dispute.

[01:07:36] Speaker 05:
Also, regardless of whose burden the proof is, we think that we did prove that it didn't indicate on its face or didn't indicate it was related to an ongoing labor dispute.

[01:07:48] Speaker 05:
And regarding the disparaging, disloyal aspect,

[01:07:51] Speaker 05:
I don't think the board even did an analysis.

[01:07:53] Speaker 05:
I'm aware of what they said in footnote 15, but they didn't set, of course, the correct standard.

[01:07:59] Speaker 05:
Uh, it was very similar to Indycock where they did not do an analysis of the factors that this court found are important in Indycock.

[01:08:07] Speaker 02:
So it was reckless or that it was maliciously false.

[01:08:12] Speaker 02:
What is your position?

[01:08:14] Speaker 05:
My position is, it's all three of those things, but I was talking about the disloyal factor.

[01:08:18] Speaker 05:
It can't be so disloyal, reckless, or realistically untrue, when I was focused on the disloyal factor.

[01:08:24] Speaker 05:
And I do not believe they did an analysis or the decision.

[01:08:28] Speaker 01:
And the disloyalty you see as lying in what aspect of his actions?

[01:08:36] Speaker 05:
His testimony at the hearing was a disparaging remark.

[01:08:40] Speaker 05:
fire and heat to the meters at an Encore product, which is clearly Encore put them on 3.1 million homes.

[01:08:49] Speaker 01:
Which seems to go more to malicious untruth.

[01:08:51] Speaker 01:
If it's true that there's some maybe admittedly limited record of some amount of problems.

[01:08:58] Speaker 01:
I mean, from your perspective, what product doesn't have some problems?

[01:09:02] Speaker 01:
But I'm trying to parse out separately whether you think there's evidence of disloyalty that wouldn't depend on

[01:09:08] Speaker 01:
the degree of untruth of the statements.

[01:09:11] Speaker 01:
There's some other, he's not saying to people boycott this company or they're a bunch of crooks in the accounting office.

[01:09:21] Speaker 01:
He's talking about a very disputed question, I understand, of the functionality and the benefit to homeowners of these meters.

[01:09:30] Speaker 01:
And that's where you find the disloyalty?

[01:09:32] Speaker 05:
Well, the disloyalty in fire and heat to electric distribution company is very similar to counsel for general counsel's allegation about safety in the food business.

[01:09:42] Speaker 05:
Fire and heat are very emotionally charged terms.

[01:09:46] Speaker 05:
So I think under the standard of what is disloyal, you do have, as I say, clearly disparaging remark in whether we, of course, do not think it's true.

[01:09:57] Speaker 01:
Because of its inaccuracy, in your view.

[01:09:59] Speaker 05:
Yes, but I think under truly a disloyal standard, even if it's true, which we clearly say it's not, but the five-star transportation case from the board, for instance, it may be well-intentioned, but that doesn't make it protected.

[01:10:14] Speaker 05:
But it was a disparaging comment.

[01:10:16] Speaker 01:
I know this is not your position.

[01:10:18] Speaker 01:
If it were true, or he reasonably thought it were true, and it relates to the worker's situation,

[01:10:27] Speaker 01:
Could it nonetheless be disloyal in a way that was supported in his discharge?

[01:10:36] Speaker 05:
That's a lot of things that we're saying.

[01:10:38] Speaker 01:
So if it's related to the worker's interests, which I know is not, you don't believe that his testimony was, but if it were, and if it were, he reasonably fairly understood it to be true.

[01:10:52] Speaker 01:
then could it still be disloyal?

[01:10:54] Speaker 01:
I'm trying to understand what separate work disloyalty might or might not be doing in this case, in your view.

[01:11:01] Speaker 01:
uh... you could be disloyal if he's, as in Jefferson's standards, saying something unrelated to the worker's interests or untrue.

[01:11:09] Speaker 05:
I think under the standard of disloyalty, as this court held in Endicott, going through those factors, six factors or so, all of which are present in this case, and the analysis of whether it's true or not wasn't one of those factors.

[01:11:24] Speaker 05:
I think it becomes even more serious and more aggravated, as in this case, where there is no underlying, truly no underlying labor dispute.

[01:11:34] Speaker 05:
So back to your question earlier about some type of balance you have that meets the factors of Endicott.

[01:11:41] Speaker 05:
And on the other hand, you have no underlying labor dispute.

[01:11:46] Speaker 05:
And so the balance clearly goes towards Tennessee and the employers

[01:11:52] Speaker 05:
ability to terminate principal ordination, including disloyalty.

[01:11:56] Speaker 02:
Can I ask, just to be crystal clear, so the only part of his testimony that you object to as disloyal is the statement, it can't be that I do know a little bit about fire and heat, because that's just

[01:12:15] Speaker 02:
Nobody knows about that.

[01:12:16] Speaker 02:
So it's the next clause, and these things are causing damage to people's homes?

[01:12:19] Speaker 02:
Is that the, what's the soil?

[01:12:21] Speaker 02:
Is it barraging?

[01:12:22] Speaker 05:
No, I'm sorry.

[01:12:24] Speaker 05:
I think earlier in his testimony, he too also says that linking the meter to burning and burning up, I think Senator Corona asked a question, is it attributable to the line in the page of the box, which of course it could be, and Reid's response is just emphatic, it's the meter.

[01:12:41] Speaker 05:
So that's why, Your Honor, we're saying that statement is just as disparaging as, in fact, the end statement that you referenced, because I think the ALJ's findings adopted by the board show there's eight or nine things that can cause lugs to break in a burning of the meter base or the meter itself, none of which are the actual meter.

[01:13:04] Speaker 05:
And I think that's clearly in the findings and then adopted.

[01:13:09] Speaker 02:
Thank you very much.

[01:13:11] Speaker 02:
Shall I give you one sentence to sum up, since you let everyone else go on for quite some time, and we pestered you with a lot of questions?

[01:13:16] Speaker 05:
Thank you, Your Honor.

[01:13:17] Speaker 05:
Yeah, I would like to take one.

[01:13:18] Speaker 02:
One sentence.

[01:13:19] Speaker 02:
One sentence.

[01:13:19] Speaker 05:
One sentence.

[01:13:21] Speaker 05:
They did no analysis of malicious.

[01:13:24] Speaker 05:
And on that basis, we should have judgment, a petition reviewed, and it'd be dismissed.

[01:13:29] Speaker 02:
Thank you very much.

[01:13:30] Speaker 05:
Thank you.

[01:13:30] Speaker 05:
Thank you.

[01:13:31] Speaker 02:
The case is submitted.