Scientists at NASA's Jet Propulsion Laboratory (JPL), housed at the California Institute for Technology (Cal Tech) were not subject to strict U.S. government background checks when they were originally hired. After September 11, the Department of Homeland Security instituted a directive which NASA interpreted as requiring all contractor employees, such as those working at JPL, to undergo background checks. Several employees objected on the grounds that some of the information sought was extremely personal and that requiring checks as a condition of continued employment adversely affected their working conditions.
In 2007 several employees filed a lawsuit against NASA and moved for a preliminary injunction preventing the background check requirement from being instituted. While the Ninth Circuit granted the injunction, the Supreme Court reversed it. In January 2011 JPL's deputy director, General Tattini, sent a message announcing the Supreme Court's decision. Several employees who were involved in the lawsuit (referred to here as the Charging Parties in this NLRB matter) felt that Tattini's message did not give enough information to employees, so they each sent out emails to other groups of employees.
Charging Party Scott Maxwell sent an email on January 27, 2011, to employees listed on JPL's "division 38 listserv" via a NASA-owned computer and using his JPL email address. The message discussed the Supreme Court decision, giving more detailed information than Tattini's email. The email went to 773 recipients, all of whom Maxwell understood would be required to have the new security badge.
On February 10, Maxwell was summoned to JPL's ethics office and told that they received many complaints regarding his email and told him he was in violation of several JPL policies. On April 6 Maxwell was given a written warning that stated he was found to have sent unauthorized, non-work related email to employees. The notice claimed that he violated JPL policies regarding spam, use of JPL identity to imply a political endorsement, improper use of his official position, and improper use of JPL resources.
Maxwell filed a grievance, contending that every recipient of the email has a JPL badge number, and therefore there were no recipients outside the organization, as the warning claimed. Furthermore, he stated the email was in fact work-related, as it directly addressed the potential security clearance procedure. He also explained the email was not political or commercial, but rather related only to an employment policy. On May 9 JPL's director of HR replied to Maxwell's grievance without acknowledging any of Maxwell's points and instead stating the written warning is not subject to the grievance process.
Several other charging parties were similarly disciplined for emails they sent to their departments with further information about the Supreme Court decision and the status of the case opposing the new security checks.
The administrative law judge who heard this charge noted that JPL allowed other employees in the past to use work email and computers to communicate regarding holiday parties, ice cream socials, a memorial service and charitable donations. JPL also allows employees to email regarding lost items, group lunches, available snacks, and Girl Scout cookie sales. The claim that now these employees were being disciplined simply because they used work email and computers to send these emails to large groups of people was not deemed believable by the ALJ. The employees here were discussing a case directly related to the implementation of security clearance checks at their place of work. The recipients of the emails were all JPL employees and officials. JPL could not permit the other emails described, but discipline these particular employees for violating policies in relation to the security check emails.
Overall, the ALJ concluded that the employees were engaged in protected concerted activity when sending the emails and they did not lose protection of the NLRA because the emails were sent on their work computers. JPL was ordered to cease and desist from disciplining employees or otherwise discriminating against them for exercising their rights under the NLRA. Within two weeks from the ALJ's decision JPL had to remove the written warnings or any reference to them from the affected employees' files.
California Institute of Technology Jet Propulsion Laboratory, Case 31-CA-030208, 31-CA-030249, 31-CA-030293, 31-CA-030326, and 31-CA-088775