National Labor Relations Board Administrative Law Judge William G. Kocol has found the California Institute of Technology engaged in unfair labor practices at the National Aeronautics and Space Administration’s Jet Propulsion Laboratory in Pasadena, California. Caltech administers JPL under contract with NASA.
In 2011, Caltech issued letters of highest level disciplinary reprimand to five JPL employees because they used JPL’s internal email system to discuss the implications of a recent Supreme Court ruling on the working conditions at JPL. The five employees had been plaintiffs in the Supreme Court case.
The Supreme Court had ruled that personal background investigations into the intimate details of the private lives of JPL employees were legally permitted under Homeland Security Presidential Directive #12 (HSPD-12)as part of the process of issuing employee identification badges used for access to the JPL facility. The employees’ email had discussed alternative approaches to the badging process and noted that NASA had wide discretion regarding the nature and scope of the background investigations.
The disciplinary citations sanctioned the employees at the most severe level for violating Caltech rules. The five employees then filed complaints with the NLRB. Upon review in 2012, the NLRB California Regional Office found that the employees had engaged in ‘protected concerted activity’ as defined by the National Labor Relations Act and that the Caltech rules were unlawful. Caltech was asked to remove the disciplinary citations. Caltech appealed the finding. The appeal was argued before Administrative Law Judge William G. Kocol at a trial held in Los Angeles on January 22-25, 2013.
Judge Kocal issued his opinion on May 6, 2013. He found Caltech at fault and ordered that the disciplinary citations be revoked.
Caltech maintained throughout the proceedings that, by imposing the intrusive background investigations on its employees, it was simply carrying out the directives of NASA. In his opinion Judge Kocol stated, “I reject JPL’s contention that it had no choice but to comply with NASA’s directives. I start by pointing out that HSPD 12 was not specific as to how the Government was to implement the directive. Other departments in the Government, according to the employees, implemented it in a manner less invasive of the privacy of their employees. And the NASA badging requirements morphed and evolved, apparently in response to the concerns voiced by the employees. Finally, there is no evidence that JPL itself could not have sought to influence NASA to address some of the concerns of its employees.”
At the trial before Judge Kocol, Leslie Livesay, JPL’s Director for Engineering and Science, testified that the disciplinary citations were justified because the employees had not included a statement specifically stating that the opinions expressed in their email were not those of JPL. Judge Kocol strongly rejected Livesay’s claim, stating, “Anyone who had been paying the least bit of attention to the long, contentious struggle concerning the badging process would know without a doubt that the messages, which on their faces were clearly authored by plaintiffs to the lawsuit, did not represent JPL’s position.”
Caltech Human Resources Director Cozette Hart testified before Judge Kocol that the employees had engaged in “Lobbying for support and lobbying NASA to change their position.” Judge Kocol dismissed Hart’s contention stating, “First, the written warnings do not specifically mention any violations of JPL’s lobbying policy, although JPL has one. This leads me to conclude that JPL is now searching for additional reasons to justify the disciplines, reasons not actually relied upon. And of course, as described below, the “lobbying” described by Hart is precisely what Section 7 of the [National Labor Relations] Act protects.”
Larry D’Addario, one of the five disciplined employees, said “It's gratifying to see that Judge Kocol understood the case very well. He recognized that we were communicating with colleagues about our working conditions and that this is protected under the NLRA. He saw through JPL/Caltech's shifting defense. The rule violations that JPL alleged didn't fit the facts. The management had disciplined us for sending messages whose content they simply didn't like, even though the messages were perfectly legitimate work-related communications that caused no harm to JPL. Their excuses for doing this could not withstand legal scrutiny. All workers in the US should be grateful that we have the NLRB to protect us from unfair labor practices."
D’Addario continues his work at JPL as a Senior Engineer.
Dennis V. Byrnes, another employee in the case said, “Judge Kocol has issued a powerful and eloquent condemnation of JPL's unjustified discipline and attempt to stifle appropriate employee concerted action. I thoroughly and carefully read and understood JPL's policies before I consulted with my fellows and considered sending my email. After receiving unfair discipline, I only hoped for a fair hearing under JPL's internal grievance procedure - being denied that, I then filed the initial unfair labor practice complaint to clear my name and establish the rights already granted in law to all employees." Byrnes, who had been JPL’s Chief Engineer for Flight Dynamics, retired from JPL rather than being subjected to the background investigation.
Scott Maxwell, Driver of JPL’s Mars Rover, said, “I'm enormously grateful that Judge Kocol saw through JPL's evasions, shiftiness, and outright lies about their unlawful behavior. This ruling is a real victory: it helps ensure that other workers are able to engage in protected, lawful activity, as we did, without fear of punishment from their powerful employers." Maxwell recently left JPL and is now employed as a high level software development engineer by a large and very well known information technology corporation.
Robert M. Nelson, Lead Plaintiff in the HSPD12 Supreme Court case, hailed Judge Kocol’s ruling stating, “It is astounding that Caltech and JPL, home to the 21st Century’s leadership in science and engineering, could harbor administrative bureaucrats who develop workplace rules similar to those described in Charles Dickins’ 19th Century writings. Judge Kocol deserves the profound gratitude of every scientist and engineer in the country” Nelson, a Senior Research Scientist at JPL, left the lab in 2012 rather than submit to a background investigation. He is now a Senior Scientist at the Planetary Science Institute.
Judge Kocol’s decision now goes to the National Labor Relations Board in Washington for approval. There are currently vacancies on that Board because of congressional filibustering of Board nominations made by President Obama. The Board can transact business in the absence of a quorum. If the NLRB upholds Judge Kocol, Caltech can appeal to either the Ninth Circuit Court of Appeals or the Washington DC Circuit Court of Appeals. If the NLRB were to overturn Judge Kocol, the LA regional NLRB office can also appeal. Any decision of an appeals court can be appealed to the Supreme Court. If there are no appeals then Judge Kocol’s order becomes final.
The JPL legal case evolves from a 2007 federal court hearing in which employees of NASA’s JPL sought injunctive relief against their employer, Caltech, and NASA in order to prevent intrusive personal background investigations. Caltech and NASA argued that these intrusions were required under Homeland Security Presidential Directive #12, an executive order signed by President George W. Bush. Most JPL employees (including all of the plaintiffs in the case) do no classified work.
Federal District Judge Otis Wright III dismissed the case on October 3, 2007. The employees appealed to the Ninth Circuit Court of Appeals, and an emergency temporary injunction was granted on October, 5 2007 just hours before JPL was to begin advertising for replacements for those employees who were deemed non-compliant.
A second panel of the Ninth Circuit Court heard arguments on this case on December 5, 2007. On January 11, 2008, the Ninth Circuit Court of Appeals found that “The Appellants have demonstrated serious questions as to certain of their claims on which they are likely to succeed on the merits, and the balance of hardships tips sharply in their favor. We therefore conclude that the district court abused its discretion in denying Appellants’ motion for a preliminary injunction, and we reverse and remand.” In addition, the Ninth Circuit Court reinstated Caltech as a defendant in the case stating, “The court found Caltech did do more [than merely follow government orders]—it established, on its own initiative, a policy that JPL employees who failed to obtain federal identification badges would not simply be denied access to JPL, they would be terminated entirely from Caltech’s employment.”
The Department of Justice appealed the case to the Supreme Court and the case was argued October 5, 2008. The Supreme Court overturned the injunction in 2009.
All court documents relevant to the case can be found at HSPD12JPL.org