A 'foolish path'
Scientist questions Caltech decision to appeal labor ruling in favor of JPL workers
By Kevin Uhrich 05/16/2013
The decision to appeal a recent finding that Caltech and Jet Propulsion Laboratory unjustly disciplined five top scientists and engineers for supposedly violating JPL email policy in relation to a recent US Supreme Court ruling was met with disbelief by a leading figure in both cases.
"It appears to be, on the surface, very unwise on Caltech's part," said retired JPL scientist Dr. Robert Nelson, lead plaintiff in Nelson v. NASA, which claimed the government had no right to conduct invasive background searches into the lives of its contract employees under provisions of Homeland Security Presidential Directive 12 (HSPD-12).
The scientists and engineers who filed suit eventually lost the case before the US Supreme Court, prompting Nelson and four others to send emails to other employees explaining the ramifications of the ruling, acts that officials at JPL, which is owned by NASA and managed by Caltech, found violated the space lab's email rules.
On May 6, Administrative Law Judge William G. Kocol found that Caltech and JPL violated the National Labor Relations Act in disciplining the five workers.
On Monday, JPL Manager of Media Relations Veronica McGregor wrote in an email, "Caltech respectfully disagrees with the decision and intends to appeal."
Caltech is not liable for monetary damages to the five claimants, who represented themselves legally, with the help of a lawyer from the National Labor Relations Board (NLRB), throughout four days of hearings in January. However, Caltech still must pay its own legal expenses, Nelson pointed out.
"The public image of an educational institute such as Caltech, at the front lines of scientific research, having a backwards labor policy and then continuing to appeal this at a very costly legal expense and process, at the expense of the generosity of the people who support Caltech, including large amounts of tax dollars, strains credulity, unless there is a hidden agenda here," Nelson said.
The next step for Caltech attorneys is to appeal the decision to the NLRB, which must first accept Kocol's ruling.
In October 2007, the five men - engineers Dennis Byrnes and Larry D'Addario, and scientists Scott Maxwell, William Bruce Banerdt and Nelson - were among 28 JPL workers to file suit in US District Court in Los Angeles to stop implementation of HSPD-12, requiring all federal agencies to issue standardized badges to their workers, a process which could include extremely intrusive "unlimited" background checks.
The claim was struck down at the district level, but a few days later an injunction was issued by the US Court of Appeals for the Ninth Circuit. In January 2011, the US Supreme Court ruled 8-0 in favor of NASA, allowing JPL to begin background checks, which prompted the five men to use work email to communicate information about some of the implications of the high court's decision to thousands of other NASA employees affected by the law's requirements.
Part of the communication involved a contention by Maxwell - perhaps best remembered as the driver of the Mars Rover - that NASA need not implement such invasive investigative techniques and tactics in checking into the backgrounds of its workers. Much as other federal agencies, such as the Department of Energy and the National Science Foundation, had done, JPL could also conceivably soften its hiring requirements while satisfying the mandates of HSPD-12, he speculated. Other messages advised workers on what they might expect if they refused to cooperate, namely termination, and what they could do in the case of such an event.
In his 32-page ruling, Kocol rejects JPL's argument that it was only carrying out NASA's policies in implementing the presidential directive first issued by President George W. Bush in 2004, writing "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. ... Finally, there is no evidence that JPL itself could not have sought to influence NASA to address some of the concerns of its employees."
In her testimony during the hearings, JPL Director for Engineering and Science Leslie Livesay said 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. But Kocol rejected that 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."
In her testimony, Cozette Hart, Caltech's human resources director, said workers had engaged in "Lobbying for support and lobbying NASA to change their position." But Kocol didn't buy that, either. "First," the judge wrote, "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 ... the ‘lobbying' described by Hart is precisely what Section 7 of the [National Labor Relations] Act protects."
Kocol further noted that JPL cannot allow some workers to use the email and computer system to post such items as birth notices, restaurant reviews and other personal messages while denying other workers the same opportunities to communicate with one another. "An employer may not allow use of its computers for non-work related activities and discriminate against the use of the computers for similar [protected] activities," Kocol explained.
In the end, Kocol ordered JPL to "cease and desist" from disciplining any worker for engaging in protected activities, remove the disciplinary warnings from the files of the five employees and post a notice for 60 days at JPL letting workers know what happened.
The hearings were held in Los Angeles a few weeks before stories were published by the Pasadena Weekly regarding NASA losing the personnel files of some 40,000 employees - not 10,000, as the space agency had originally estimated following the theft of unencrypted agency laptop that was left in a car parked overnight in Washington, DC on Halloween 2012. In their case before the Supreme Court, the 28 workers argued that JPL did not need intimate details about the lives of its low-security employees, and that NASA would be unable to secure such information if it had it, a prescient contention, all things considered.
"I'm enormously grateful that Judge Kocol saw through JPL's evasions, shiftiness, and outright lies about their unlawful behavior," said Maxwell, who left JPL after 18 years to go to work for Google. "This ruling," he said in a prepared statement, "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."
"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," wrote Nelson, who started at JPL in 1978 and, like Byrnes, retired rather than undergo a background check. "Judge Kocol deserves the profound gratitude of every scientist and engineer in the country."
By the same token, Nelson said, Caltech needs to explain why it is pursuing this appeal.
"Caltech needs to come clean," said Nelson. "The best thing they could do is have a public meeting to explain to the citizens of this community, to the taxpayers who support them so generously, and the 5,000 people who work at JPL, why they are continuing down this foolish path."