California Institute of Technology Jet Propulsion Laboratory

National Labor Relations Board - Board Decisions

Mar 12, 2014

360 N.L.R.B. 504 (N.L.R.B. 2014)

504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 63
California Institute of Technology Jet Propulsion La-
boratory and Dennis Byrnes and Scott Maxwell
and Larry D’Addario and Robert Nelson and
William Bruce Banerdt. Case 31–CA–030208,
31–CA–030249, 31–CA–030293, 31–CA–030326,
and 31–CA–088775
March 12, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On May 6, 2013, Administrative Law Judge William
G. Kocol issued the attached decision. The Respondent
and the General Counsel both filed exceptions, support-
ing briefs, and answering briefs; and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.

1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
We agree with the judge, for the reasons set forth in his decision,
that Charging Party Robert Nelson did not lose the protection of the Act
under NLRB v. Electrical Workers Local 1229 (Jefferson Standard
Broadcasting Co.), 346 U.S. 464 (1953), because Nelson did not dis-
parage the Respondent’s or NASA’s products or services. In addition,
Jefferson Standard provides that employee communications to the
public may lose the Act’s protection under certain circumstances, but
Nelson’s email was sent only to the Respondent’s own employees. For
this additional reason, Nelson retained the Act’s protection.
Chairman Pearce does not agree with the standards governing re-
strictions on employee use of employer email systems established in
Register Guard, 351 NLRB 1110, 1114–1119 (2007), enf. denied in
relevant part sub nom. Guard Publishing Co. v. NLRB, 571 F.3d 53
(D.C. Cir. 2009). Nevertheless, he agrees with the judge and his col-
leagues that, even applying those standards, the Respondent violated
Sec. 8(a)(1) by discriminatorily enforcing its policies to restrict the
Charging Parties’ Sec. 7 activity.
In addition, although Chairman Pearce agrees with the judge and his
colleagues that, in context, a reasonable employee would not under-
stand sec. 2.3 of the Respondent’s Ethics and Business Conduct policy
to interfere with Sec. 7 activity, in doing so he finds it unnecessary to
pass on whether Ark Las Vegas, 335 NLRB 1284 (2001), and Lafayette
Park Hotel, 326 NLRB 824 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999),
were correctly decided.
Member Miscimarra agrees that sec. 2.3 of the Respondent’s Ethics
and Business Conduct policy is not overly broad in violation of the Act,
but he disagrees with the standard set forth in the first prong of the test
in Lutheran Heritage Village–Livonia, 343 NLRB 646, 647 (2004),
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, California Institute of Tech-
nology Jet Propulsion Laboratory, Pasadena, California,
its officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Miguel A. Manriquez, Esq., for the General Counsel.
J. Al Latham Jr. and Cameron W. Fox, Esqs. (Paul Hastings,
LLP), of Los Angeles, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Los Angeles, California, on January 22–25, 2013.
Each individual charging party filed a charge, the first of which
was filed on May 9, 2011, and the General Counsel issued the
amended consolidated complaint on October 26, 2012. The
complaint alleges that California Institute of Technology Jet
Propulsion Laboratory (JPL) violated Section 8(a)(1) of the
National Labor Relations Act (the Act) by disciplining employ-
ees Robert Nelson, Dennis Byrnes, Scott Maxwell, Larry
D’Addario, and William Bruce Banerdt because they engaged
in protected, concerted activity. The complaint also alleges that
JPL violated Section 8(a)(1) by maintaining an unlawful rule
and disciplining employees pursuant to that rule. JPL filed a
timely answer that admitted the allegations in the complaint
concerning the filing and service of the charges, interstate
commerce and jurisdiction, and the discipline taken against the
employees; it denied it had violated the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and JPL, I make the following
FINDINGS OF FACT
I. JURISDICTION
JPL, a corporation, is a Federally funded research and devel-
opment center operated by the California Institute of Technolo-
gy with an office and place of business in Pasadena, California,
where it annually purchases and receives goods or services
valued in excess of $50,000 directly from points outside the
State of California. JPL admits, and I find, that it is an employ-
er engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
This case involves scientists and engineers working at the
National Aeronautics and Space Administration’s Jet Propul-
sion Laboratory located in Pasadena, California. The Califor-
nia Institute of Technology (Cal Tech) operates that facility for
NASA; JPL is a division of Cal Tech. NASA owns all the
equipment at the facility, including the computers, and requires

which was relied upon by the judge; Member Miscimarra advocates for
a reexamination of this standard in an appropriate future case.
CALIFORNIA INSTITUTE OF TECHNOLOGY JET PROPULSION LABORATORY 505
that JPL maintain certain standards and abide by certain rules in
using its equipment. About 5000 persons work there. JPL
employees were not subject to U.S. Government background
checks at the time they were hired, but that changed as a result
of Homeland Security Presidential Directive (HSPD) 12.
HSPD 12 required Federal Government employees and em-
ployees for contractors with the Federal Government to be sub-
ject to a uniform standard for obtaining badges to enter Federal
facilities. NASA interpreted this directive to require all con-
tractor employees such as those working for JPL to submit to
background checks. Employees were required to complete
certain forms or be fired. Several employees objected that
some of the information sought on the forms was a violation of
their privacy. They also felt that submission to the background
checks as a condition of continued employment adversely af-
fected their working conditions.
On April 20, 2007, JPL management announced that it was
beginning the process for background investigations of the
employees. JPL conducted informational meetings about the
badging requirements at which employees voiced their con-
cerns. This prompted the JPL to inform employees that “[I]f
you are unhappy with or disagree with the badging require-
ments, you should address your concerns to me. . . .” On June
11, 2007, JPL reminded employees “[I]f you do not want to
surrender the information to allow your background to be
checked and identity to be verified, then you cannot work” at
JPL. A number of non-JPL employees regularly enter the facil-
ity to perform work tasks; they are subject to the same badging
requirements as JPL employees.
So in 2007, about 28 employees filed a suit against NASA,
the Department of Commerce, and others, both individually and
on behalf of a class of employees, and also moved for a prelim-
inary injunction to prevent NASA from requiring the employ-
ees to complete a questionnaire form by the deadline or be
fired. The U.S. District Court denied the motion, but upon
appeal the Ninth Circuit granted a preliminary injunction. The
Supreme Court reversed. NASA v. Nelson, __ U.S. __, 131
S.Ct. 746 (2011). The Court assumed, without deciding, that
the Constitution protects a right to informational privacy, but
the Court held that the right was not violated by requiring the
employees and others to complete certain forms. On January
19, 2011,1 JPL’s deputy director, General Eugene L. Tattini,
sent a message announcing the Supreme Court’s decision; that
message went to JPL employees as well as nonemployees who
also perform work at the JPL facility. Several of the plaintiffs
in the lawsuit, including the Charging Parties, and others dis-
cussed the fact that they felt General Tattini’s message did not
give employees sufficient information about the actual impact
of the Supreme Court’s decision. So they decided, again with
other employees, to get more information to the employees.
The details of that process follow below.
B. Email Messages and Discipline
1. Scott Maxwell
Scott Maxwell has worked for JPL since 1994; he currently
works as the Mars rover driver for the Mars Science Laboratory

1 Unless otherwise indicated, all dates that follow are in 2011.
Curiosity Mission. This is the rover that landed on Mars in
August 2012. He was a plaintiff in the lawsuit described above.
On January 27, Maxwell sent a message to employees listed on
JPL’s division 38 listserv; Maxwell used the NASA-owned
computer and used his JPL email address in doing so. That
message discussed the Supreme Court decision and stated:
Over three years ago, we received notice that we were com-
pelled, at risk of losing our jobs, to participate in a new badg-
ing process. There are aspects of the process that alarm us:
how our personal information will be protected; specific ques-
tions that are unconstitutional; a requirement that we authorize
open-ended background investigations into the most intimate
details of our private lives; a requirement that we authorize
anyone with information or records about us to turn it over to
the government, overriding any prior confidentiality agree-
ment; a set of criteria (the so-called “suitability matrix”) that
NASA intended to use to evaluate our suitability for contin-
ued employment. The suitability matrix covers nearly every
category of human behavior, including financial stability,
sexual experience, and other morality judgments.
. . . .
NASA then decided to require an investigation that is unlim-
ited as to nature and scope. Investigators can ask any question
they want, and they can ask any source they want (including
neighbors, ex-spouses, landlords, former employers—
anyone).
. . . .
Along the way we have had some significant victories. For
instance, the suitability matrix has been jettisoned; the gov-
ernment, three days prior to filing their brief in the Supreme
Court, ended its use and disavowed the specific criteria that
included medical history, personal opinions, political beliefs,
participation in advocacy, and a host of issues protected by
the First Amendment.
There are reasons to be hopeful. While the Supreme Court
has ruled that it is legal for NASA to ask the challenged ques-
tions, it does not require NASA to do so. NASA can still de-
termine the nature and scope of the investigators’ questions
and the methods to evaluate the results. Since JPL is a feder-
ally funded research and development center (not civil ser-
vice), NASA can follow the lead of federal agencies (such as
the Department of Energy and National Science Foundation)
that do not require extensive background checks for employ-
ees in similar low-risk job categories at their FFRDCs. How-
ever, NASA could instead choose to move forward with the
original process, in which case you may be asked to submit
what the 9th circuit described as an “unbounded and standard-
less inquiry.” If NASA decides to impose these procedures
and you are uncomfortable with them, it may be that your on-
ly recourse is to discuss your concerns with your personal at-
torney and sympathetic coworkers.
. . . .
We will continue to work for a less odious process, and we
will urge NASA to adopt policies like those of DoE and NSF.
These procedures would be compliant with regulations and
would not entail intrusive background investigations. We
have no regrets about initiating this lawsuit, and we are proud
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of what we have accomplished. We very appreciate the sup-
port and encouragement we have received from the JPL
community and throughout the country.
Robert Nelson, Dennis Byrnes, and Susan Foster
On behalf of the JPL plaintiffs in the HSPD 12 case, Nelson et
al. vs. NASA et al.
Approximately 773 persons received that message. Maxwell
understood that all these persons are required to have the new
badges and therefore might be interested in the message, alt-
hough not all persons on the listserv were JPL employees.
Several employees responded by sending Maxwell email mes-
sages expressing gratitude and support. As more fully de-
scribed below, Maxwell’s message was the product of a collab-
orative effort that included Robert Nelson, Dennis Byrnes,
Susan Foster, Maxwell, and other plaintiffs in the lawsuit.
On February 10, Maxwell was summoned to JPL’s ethics of-
fice. Present was Lani DeBenedictis, who is JPL’s ethics of-
ficer, and two other persons. DeBenedictis said that her office
had been swamped with complaints about the email messages
that had been sent. She asked Maxwell what prompted him to
send the email. Maxwell explained that the Supreme Court’s
decision and HSPD 12 raised ethical and work issues that he
felt would be appropriate to discuss with his work colleagues.
DeBenedictis gave Maxwell a copy of JPL’s policies concern-
ing correct use of sponsor resources; those policies are detailed
below. Maxwell was already familiar with some of them and
protested that he had not discussed political, religious, or social
issues in the email message; DeBenedictis responded that that
was not the issue, the issue was spam; she claimed that Max-
well’s email went to 773 persons. She then gave Maxwell a
copy of JPL’s spam policy. Maxwell read the policy and then
said that the email message he sent was not spam under that
policy. DeBenedictis then responded that the issue was Max-
well’s unethical use of sponsor resources.
On April 6, Maxwell was given a written warning from John
Wright, his supervisor, and Elizabeth Kay-Im, his section man-
ager that indicated as follows:
The JPL Ethics Office and Human Resources have completed
their investigation concerning allegations that you distributed
unsolicited bulk e-mail entitled “Supreme Court Decision” us-
ing JPL resources on January 27, 2011.
After receiving complaints from employees, the Ethics office
found that you sent unauthorized, non-work-related e-mails to
JPL employees in Division 38. In addition to JPL employees,
it was found that the emails you sent were also sent to indi-
viduals outside of JPL. For example, the e-mails were sent to
Universities, entities in the public sector and private sector,
and governmental agencies throughout the United States.
These e-mails reached a total of 773 persons.
The specific policies that were reviewed were:
 JPL Policy Rules! Doc ID # 40152, Spam
 JPL Rules! Doc ID #58712, Commercial and Political
Endorsements
 JPL Rules! Doc ID # 58572, Ethics and Business
Conduct
 JPL Rules! Doc ID #58720, Use of JPL and Sponsor
Resources
As part of this investigation, you were given the opportunity
to discuss the circumstances of this case and to explain your
perspective and answer questions. I have received the results
of this investigation and after careful consideration of the is-
sues and information obtained, I am in agreement with the
following findings:
Spam/Unsolicited Bulk Email—You were in violation of
JPL Policy Rules! Doc ID # 40152, because your e-mails
were unsolicited and sent in bulk, and were non-business-
related. In addition, the emails were perceived by some recip-
ients as soliciting support and offensive in tone.
Use of JPL Identity to Imply Preference/Endorsement—
You were in violation of JPL Rules! Doc ID #58712, Com-
mercial and Political Endorsements because both the content
of the emails and the circumstances under which the emails
were sent could imply JPL’s endorsement or approval of the
individuals’ private legal action and the political, social, or le-
gal issues underlying the lawsuit. Also, JPL’s image and suc-
cess in competing for public funding requires a clear percep-
tion of impartiality in its dealings and JPL employees must re-
frain from any action that suggests JPL officially endorses or
supports a private cause.
Improper Use of JPL position (Acting Outside Official
Capacity)—You were in violation of policy JPL Rules! Doc
ID #58572, Ethics and Business Conduct because you trans-
mitted content that was outside of your official Laboratory
capacity (engineering and scientific endeavors). Also, the
email sent by you is not pertinent to JPL activities and thus is
unsuitable for widespread internal and external distribution.
In addition, you misused your access to JPL distribution lists
to transmit an e-mail inappropriate in size, frequency, and
content.
Improper Use of JPL and Sponsor Resources—You were
in violation of JPL Rules! Doc ID #58720, Use of JPL and
Sponsor Resources because you attempted to share and pro-
mote your personal positions on political, social, legal, and
public policy issues. None of which relates to JPL business or
work.
In addition to violating the above policies, this action was re-
ported to be offensive and disruptive by a number of JPL em-
ployees. Use of JPL email to this extent also overburdens the
JPL emails systems, which could impact the system’s ability
to deliver work-related messages.
Based upon the results of the investigation you are being giv-
en this Written Warning for violating the JPL policies identi-
fied in this disciplinary document. Effect immediately, you
are instructed to comply with the JPL policies concerning the
use of JPL resources. You must ensure that you use JPL re-
sources only to conduct JPL business and not to advocate per-
sonal views. Going forward, you are only authorized to use
JPL resources, including email, for activities directly related
to your JPL work. If you violate these policies again, you will
CALIFORNIA INSTITUTE OF TECHNOLOGY JET PROPULSION LABORATORY 507
be subject to further disciplinary action, up to and including
termination of your employment.
At the bottom of the warning, Maxwell wrote that the matter
was not discussed to his satisfaction and he was not in agree-
ment with the findings. At the same time, Maxwell was given
portions of the JPL policies referenced in the warning, includ-
ing the following:
Spam
Defined as unsolicited commercial e-mail (UCE) and/or unso-
licited bulk e-mail (UBE). Spam is distributed either by a
mass mailing to individual addresses, by inappropriate sub-
missions to mailing lists, or by inappropriate submissions to
Usenet newsgroups. Most Spam contains forged headers and
“From” lines. These are employed in order to conceal the ac-
tual origin of the message.
2.0 Commercial and Political Endorsements
Note: An endorsement or testimonial is a written or spoken
statement, extolling the virtue of a thing, product, or service.
2.1 Except as set forth below, JPL’s identity name or logo
shall not be used in any way which could imply a commercial
or political endorsement of any organization, product, private
venture, individual, group, or cause.
2.2 JPL’s image and success in competing for public funding
requires a clear perception of impartiality in the dealings with
the general and business public. Therefore, JPL employees
shall refrain from any action that could reasonably be per-
ceived or implied as an endorsement or official preference by
the Laboratory, Caltech, or NASA. Prohibited actions include
written, oral, and electronic correspondence, either from the
Laboratory or with any Laboratory identification.
. . . .
2.4 Federal laws and regulations, as well as our prime con-
tract with NASA, prohibit lobbying by JPL employees. Un-
solicited communications with legislative or executive branch
agencies that could be interpreted as lobbying should be vet-
ted by the Office of Legislative Affairs.
Maxwell was given the entire section of JPL’s ethics and busi-
ness conduct policy, consisting of eight sections spanning six
typewritten pages. Maxwell’s warning did not specify what
portion of the policy he violated. I reproduce below only two
sections of that policy; JPL relies on the first and the General
Counsel on the second.
Ethics and Business Conduct
. . . .
2.2 JPL employees shall not use their JPL positions in a
manner which is motivated by the desire for personal gain for
them or persons with whom they have personal, business, pro-
fessional or financial ties.
2.3 As representatives of JPL, employees shall avoid any ac-
tions which could reasonably be expected to adversely affect,
or give the appearance of adversely affecting, the independ-
ence and objectivity of their judgment, interfere with the time-
ly and effective performance of their duties and responsibili-
ties, or discredit the Laboratory.
Finally, Maxwell was given the entire section use of JPL and
sponsor resources; this consisted of five sections and six pages.
I reproduce only those portions having any bearing on this case.
Use of JPL and Sponsor Resources
Laboratory resources are provided for the conduct of JPL
business, the performance of work related duties, professional
education and training. These resources should not be used
for personal activities except to the extent authorized either by
written Laboratory policy or in support of activities approved
by the Director or Deputy Director. Resources include all . . .
computers, computer accounts and services, software, e-mail
. . . the name of Caltech or JPL . . .
While limited use of some Laboratory resources for activities
not directly supporting JPL work may be authorized, no La-
boratory resources may be used to:
 Promote, sell, or trade goods or services for any pro-
motional or profit-making endeavor;
 Share your views, promote, or take positions on polit-
ical, religious, or social issues, or
 Conduct personal business, except as described be-
low.
Limited, occasional use of electronic information resources
for personal, non-business purposes is understandable and ac-
ceptable as long as such use:
 Does not adversely affect the performance of the em-
ployee’s official duties or the effective functioning
of their organization;
 Is of reasonable duration and frequency,
 Is not prohibited by the organization’s management
or these requirements, and
 Does not violate state of federal laws, compromise in-
tellectual property rights, or result in embarrass-
ment to the Laboratory, Caltech, or a sponsor.
. . . .
Email and Internet Usage
Within all the above guidelines, limited use of email and the
internet for personal non-business purposes is acceptable with
the following being expressly prohibited:
 Spamming, hacking, or cracking.
. . . .
 Sending communications which are . . . harassing . . .
derogatory to individuals or organizations . . .
against JPL/Caltech policy, or otherwise contrary
to the best interests of the Laboratory.
I have set forth the content of JPL’s policies at issue in this
case; I have described the written warning received by Max-
well. I now compare the policies to the assertions in the written
warning. The April 6 warning states that he violated the
“Use of JPL Sponsor Resources” policy because he attempt-
ed to “share and promote” his “personal positions and views
on political, social, legal, and public policy issues.” But
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
JPL’s Director of Engineering and Science and Director of
Directorate 3 Leslie Livesay conceded that “legal and public
policy issues” are not specifically referenced in the use of
JPL a n d Sponsor Resources policy. The April 6 written
warning indicates that Maxwell was in violation of the
“Commercial and Political Endorsements” policy because the
January 27 email “could imply JPL’s endorsement or ap-
proval of the individuals’ private legal action and the politi-
cal, social, or legal issues underlying the lawsuit.” Howev-
er, JPL’s Commercial and Political Endorsements policy
does not mention legal actions, legal issues, social issues, or
lawsuits. The April 6 written warning cites the Ethics and
Business Conduct policy, which contains several subparts none
of which are specifically identified in the written warnings, as
a reason for the disciplines. Livesay was asked to point out
which subpart of the Ethics and Business Conduct policy
was violated by the January 27 emails, and she testified that
the prohibition of use of JPL positions in a manner which is
motivated by the desire for “personal gain” under Section
2.2 of the Ethics and Business Conduct policy was violated.
Livesay stated that the use of JPL positions for “personal
gain” was the only part of the Ethics and Business Conduct
policy that was violated. However, on cross-examination,
however, Livesay admitted that there is no reference to “per-
sonal gain” in the written warning. In other words, the as-
sertions of misconduct in the written warning and the policies
allegedly violated simply do not match up.
JPL has an internal grievance procedure so Maxwell filed a
grievance to protest his written warning. In part he wrote:
 In its preface, the memo says that my email went to
individuals outside of JPL. I don’t know whether
this is true, but I note that I sent my email to a sin-
gle address—a division mailing list provided by
JPL and presumably intended for communication
with work colleagues. Every single member of
this mailing list has a JPL badge number, implying
that they work for JPL (whether they are housed at
the institution or not) and would be legitimately in-
terested in changes to JPL’s badging situation that
were the subject of the email. However, it is inter-
esting to note that this paragraph does not specifi-
cally allege any wrongdoing—any violation of JPL
policy—so perhaps it is not an accusation to which
I need to respond.
 The memo says that my email was in violation of the
spam policy . . . because it was unsolicited, sent in
bulk, and not business-related.
This is first flatly untrue, in that the email was in fact
business-related. Prior to my email, Dr. Elachi met
with all managers to discuss this very subject; Gen-
eral Tattini sent Labwide email (much further-
reaching than my email) on this very subject; and my
own Division Manager, Tom Luchik, discussed this
matter with the entire Division (and publicly offered
his own personal opinion on the subject as well).
These actions by my management clearly demon-
strate the business-related nature of my communica-
tion.
In addition, I note that I commonly receive email that
is unsolicited and sent in bulk, as widely or more
widely than my email was sent, and not all business-
related. I can forward you plenty of examples, but I
mean the sort of thing like an announcement that So-
and-So has named his child. As far as I know, these
email messages do not routinely result in institutional
discipline.
 The same paragraph notes that some recipients of my
email perceived it as attempting to solicit support.
This may be, but since the email carefully did
“not” attempt to solicit support, I don’t understand
why it’s an issue.
 Next, I’m told that I violated policy #58712 (use of
JPL identity to imply preference/endorsement of
commercial or political endeavors). In contrast to
what this paragraph says, no reasonable person
reading my email could possibly have thought that
it implied JPL endorsement of a private legal ac-
tion. Moreover, the supposedly endorsed action is
neither commercial nor political, so I am not in vi-
olation of that policy for that reason.
 The memo then accuses me of acting outside my offi-
cial Laboratory capacity. Again, as demonstrated
above, the issue in question is work-related, and
sending email on a work-related issue to my col-
leagues is not outside my official Laboratory ca-
pacity.
 The same paragraph goes on to state that my email
was not pertinent to JPL activities. I’m frankly at a
loss to understand how this could possibly be
true—again, I will content myself with noting the
plainly work-related nature of the communication,
as demonstrated before me by Dr. Elachi, General
Tattini, and Tom Luchik, who all used sponsor re-
sources to communicate with the Lab on the same
matter.
 The same paragraph says that the email was inappro-
priate in size, frequency, and content. I believe the
“content” piece of this has already been addressed:
it was work-related. I don’t see how a single email
could be over any reasonable “frequency” line.
Further, it is much smaller than most other email
messages that I receive, which are commonly
bloated by HTML, attached images, and so on. So
I cannot see how it could possibly have been inap-
propriate in “any” of size, frequency, or content,
much less (as the accusation runs) all of those at
once.
 I am then accused of violating policy #58720, the use
of JPL sponsor resources, supposedly because I at-
tempted to share and promote my views on politi-
cal social, legal, and public policy issues. While
this is strictly true—I mean, I did that—the memo
misrepresents the policy it claims to quote.
CALIFORNIA INSTITUTE OF TECHNOLOGY JET PROPULSION LABORATORY 509
That policy actually says I may not share my views
on political, religious, or social issues (a prohibition I
agree with, incidentally). I did none of those things,
and so I believe I am not in fact in violation of the
policy. In addition, this might be a good time to re-
mind you yet again that my management repeatedly
discussed this very issue, in various forums including
but not limited to email, and including the expression
of their personal opinions, thus clearly establishing its
work-related nature.
 I am told that my actions were reported as offensive
and disruptive. This might be true; I have no way
of knowing, since the feedback I received was en-
tirely positive. But in any case, as far as I can tell,
it is not a violation of any JPL policy to say things
that some people perceive as offensive and disrup-
tive. (Indeed, I would claim that a healthy engi-
neering institution “requires” exactly that from
time to time.)
I wonder: If General Tattini’s Labwide email mes-
sages about HSPD-12 were reported to the Ethics of-
fice as offensive and disruptive, would they stop?
Probably not. So that is not actually the rule, or in
any case it is not the rule that is applied to people
other than myself.
 In the same paragraph, I was told that my email could
overburden the JPL email system. This is a farci-
cal claim on its face. I sent a single, relatively
small message to a few hundred people, and it was
delivered within seconds. JPL’s email system
might not be what it once was, but it’s not so
creaky and precarious that it can’t handle that.
For the reasons stated above, the written warning is
unfair and illegitimate. I have not violated any JPL
policy as they existed at the time of my action, and in
particular I have clearly not violated the policies that
the written memo accuses me of violating.
Accordingly, the warning should be expunged from
my record.
On May 9, JPL’s director of human resources responded to
issues raised in Maxwell’s well-reasoned grievance as follows:
I have reviewed the matter along with your requests and sup-
porting documentation. I have concluded that a full investiga-
tion of this matter was conducted and that based upon the in-
vestigation findings your manager determined that you did
violate JPL policy. The warning that you received was in-
tended to ensure that you understand our policies and under-
stand that your conduct violated those policies. The purpose
of the warning is to help you avoid committing further infrac-
tions. As such, the written warning is not subject to the for-
mal resolution/grievance procedure.
2. William Bruce Banerdt
William Bruce Banerdt works for JPL in its science division
as a principal scientist, a position he has held for about 8 years;
he began working for JPL in 1977. Around 300–350 persons
work in the science division. Banerdt was also a plaintiff in the
lawsuit that reached the Supreme Court, described above. On
January 27, Banerdt sent the identical message Maxwell had
sent, except that it also contained the following preface:
Dear Division 32 Colleagues:
Last week the Supreme Court issued its opinion in the case of
Nelson v. NASA (concerning the implementation of badging
under HSPD-12), ruling in favor of the government. The rul-
ing resulted from a lawsuit by myself and 27 other JPLers
who complained that the background investigations associat-
ed with the new badges are overly intrusive. The opinion was
unanimous but very narrow, and its impact on JPL employees
is currently uncertain. As explained by Deputy Director Tatti-
ni in a lab-wide email, “we will need to work with NASA to
determine how the ruling affects the issuance of badges and
its impact on badging applications currently in the system.”
It is clear that this ruling will have some effects on those of us
that work at JPL, and I think it is in everyone’s best interest
for us to be informed as we begin the next step in this process.
So for those of you that are interested, a detailed explanation
of the ruling and its possible ramifications is available by the
28 plaintiffs, appended below.
Banerdt used his NASA-owned work computer to send that
message and he sent it to all persons in his division via a JPL
listserv that reached about 330 persons. Banerdt, like Maxwell
and other employees described below, reviewed drafts of the
message and made suggestions. Those who participated in the
process decided that they each should send the email message
to those employees in their section or division.
On February 15, Banerdt was summoned to DeBenedictis’
office. DeBenedictis told Banerdt that there was an ongoing
investigation concerning the email incident, including his
email. DeBenedictis said that they were trying to get a better
understanding of what happened to develop guidelines that
could be used in the future so that everyone was both able to
communicate but didn’t make such a big impact. She explained
that the emails were an “unprecedented avalanche” that had
gone to a total of about 8000 persons. DeBenedictis said that
the emails appeared to be a coordinated effort and Banerdt
agree that it had been. She explained that the investigation was
triggered by a number of complaints JPL received from manag-
ers and employees concerning the emails, but she refused to tell
Banerdt how many complaints were received. DeBenedictis
asked Banerdt whether he volunteered to send the email or
whether he had been asked to do so. Banerdt explained to her
that he guessed he volunteered because he participated in creat-
ing the message with the others who also sent similar messages.
He explained that it had been a group effort by those employees
who had come to create the message by consensus by the draft-
ing the message, making comments, and editing the message as
a group. DeBenedictis mentioned the JPL policies against
spamming, misuse of government resources, and misrepresen-
tation of JPL positions as official positions. She asserted that
the email messages were advocating a political position;
Banerdt expressed his disagreement with that assertion.
DeBenedictis asked whether the messages were something of
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
general interest to the JPL community and Banerdt said he
believed they were. She stated that the messages went to peo-
ple outside of JPL; in response Banerdt commented that it did
not surprise him because the email listserv included non-JPL
employees who come on to the facility and are therefore subject
to, and interested in, the badging requirements. Banerdt also
told DeBenedictis that he would not have sent the email mes-
sage that Nelson sent, described below, because it was too big.
On April 6, JPL gave Banerdt a written warning with at-
tachments identical to the one given to Maxwell, fully de-
scribed above, except that it indicated that Banerdt’s email
message was sent to 589 persons. Banerdt was simply told that
he was given the written warning; no further explanation was
provided.
3. Larry D’Addario
Larry D’Addario has worked as principal engineer at JPL
since 2004. He works in the communications and radar divi-
sion that encompasses about 640 persons. D’Addario was a
plaintiff in the lawsuit.
On January 27, D’Addario sent an email message to his col-
leagues in his division. It was identical to the message sent by
Maxwell, but it also had a preface from him as follows:
On January 19, the Supreme Court issued its opinion in the
case of Nelson v. NASA, ruling in favor of the government.
As explained by Deputy Director Tattini in a lab-wide email,
“we will need to work with NASA to determine how the rul-
ing affects the issuance of badges and its impact on badging
applications currently in the system.” The opinion was very
narrow, and its impact on JPL employees is currently uncer-
tain.
The ruling resulted from a lawsuit by 28 JPLers who com-
plained that the background investigations associated with the
new badges are overly intrusive. A more detailed explanation
of the ruling is available in a letter to JPL employees by the 28
plaintiffs, a copy of which is attached.
D’Addario also added the following postscript to the message:
This letter . . . [was] produced by concerned employees of
JPL and other NASA centers as private citizens using person-
al resources and [is] not endorsed by JPL, Caltech, or NASA.
D’Addario too was summoned to DeBenedictis’ office; this
occurred on February 10. DeBenedictis told D’Addario that the
meeting was about the email message he had sent. She pointed
out that four individuals had sent similar emails and in total the
messages reached over 8300 persons and that her office had
received some complaints about emails. So D’Addario asked if
he was accused of violating any rule, and DeBenedictis referred
him to the rules concerning use of sponsor resources and spam.
D’Addario, who had prepared for this meeting, handed her a
copy of the rule concerning sponsor resources and asked how
he had violated that rule. DeBenedictis was unable to answer;
instead she said she would get back to him the following week.
DeBenedictis asked whether he had prepared the email himself
and he explained that he had prepared the preface himself but
the lengthier message was prepared jointly by a group of em-
ployees. DeBenedictis asked D’Addario why he had sent the
message and he replied that he thought it was obvious from its
content. During the course of the meeting D’Addario also
asked DeBenedictis to provide him with the definition of spam;
he also asked whether anyone in his line management chain had
complained about the email message. On February 16, DeBen-
edictis provided D’Addario with copies of several rules impli-
cated by her investigation and answered:
I have not reviewed all the notifications related to the January
27th emails but I can assure you that as of today I did not re-
ceive a contact from your specific line management to discuss
our fact-finding on the matter.
On April, 6 JPL gave D’Addario the now familiar written
warning; his written warning indicated that his email was sent
to 637 persons. D’Addario, like Maxwell, filed a written griev-
ance; it was rejected on the same basis as Maxwell’s grievance.
4. Dennis Vincent Byrnes
Dennis Vincent Byrnes worked for JPL from 1988 until his
retirement on April 1, 2012. He was chief engineer for flight
dynamics at the time of his retirement. He worked in division
34 with about 600–700 persons.
On January 17, Byrnes sent the email to the people on the
listserv for his division. He prefaced the message with his own
comments that follow:
To my colleagues in Division 34:
The U.S. Supreme Court ruled last week on the case brought
by myself and 27 other JPL employees against the federal
government over the badging implementation under HSPD12.
The statement below explains some of the ramifications of
this decision for us as Caltech employees at a federal govern-
ment site.
I have appreciated the expressions of support and interest over
the past 3+ years from many of you, as well as the expres-
sions of disagreement and questioning of our position from
others. I hope that we can continue to have open civil discus-
sion under the JPL Values of Openness and Integrity.
It is interesting to note that today’s LA Times has an editorial
(copied in today’s JPLSPACE in JPL in The News), “Not so
fast, nosy Government,” recognizing our success in the SC
decision which presumed a Constitutional right to informa-
tional privacy for all even while allowing the specific ques-
tions for the federal contractors on a federal site.
Byrnes received his written warning on April 6; it indicated
that his message was received by 4715 persons. It was other-
wise identical to the other written warnings except that it also
contained the following additional paragraph:
More recently, it was discovered that you sent an unnecessary
email to Ms. Kimberly Lievense from JPL’s Office of Com-
munication and Education on April 3, 2011. JPL considers
your email to Ms. Lievense to be sarcastic rhetoric without
any work-related content. Such messages are considered a
nuisance and are expected to stop immediately. In addition,
you are to remove the non-work-related information from
your JPL email signature line: “HSPD-12—It’s voluntary!
Sign or Starve, Your Choice—but now you can wait!”
CALIFORNIA INSTITUTE OF TECHNOLOGY JET PROPULSION LABORATORY 511
I now describe that background necessary to understand this
additional paragraph, and it begins back with the oral argument
before the Supreme Court. During that oral argument the Act-
ing Solicitor General told the Supreme Court that the badges at
issue were of such importance that they would allow employees
to get within 6–10 feet of the space shuttle as it is being re-
paired and refueled for launch. The plaintiffs strongly protest-
ed that the Acting Solicitor General misrepresented this as a
fact to the Supreme Court; more details of this follow in the
section below concerning the discipline of Robert Nelson. On
April 1, 2011, Lievense, a manager in JPL’s public service
office, sent an email message to all employees announcing the
launch of the Space Shuttle Endeavor from the Kennedy Space
Center in Florida. In the announcement Lievense also added:
The Public Service Office has a limited number of STS-134
Car Placards for the NASA Causeway for JPL employees that
would like to attend a shuttle launch. The NASA placard is
valid only with a NASA badged employee (your JPL/NASA
Badge).
Byrnes apparently could not resist pointing out the apparent
contradiction between that message and the oral argument rep-
resentation made by the Government; he replied to Lievense:
I wonder if you can help me out here?
Why would a JPL employee with a PIV II badge need such a
placard? The Department of Justice (acting Solicitor General
Katyai in oral arguments to the US Supreme Court and veri-
fied to the Washington Post) has indicated that NASA has
said such a badge is “of such importance that it allows holders
to get within 6-10 feet of the Space Shuttle as it is being re-
paired and refueled for launch.”
Thus, your message should make clear that the placard is only
necessary for those such as myself who only have the One
NASA badge, or for those who wish to bring guests. I think it
is important that your message be clarified, since this is such
an important issue for NASA. Those JPL employees with the
PIV II badge should be made aware that they are allowed to
drive onto site at KSC and walk right up to the Shuttle any
time they wish to.
Thanks,
Dennis
—
HSPD-12—It’s voluntary!”
Sign or Starve, Your Choice—But now you can wait! :-)
Byrnes had previously sent emails with the motto following his
signature line without repercussions from JPL. So this was the
background that led to the inclusion of the additional paragraph
in Byrnes’ written warning. Byrnes reacted to the paragraph in
his written warning by sending the following message to Depu-
ty Director Tattini:
[I]n the written warning to me I was also reprimanded for
sending an email to Kimberly Lievense regarding the Space
Shuttle placards. If you believe that I was sarcastic, then you
must also believe that DOJ lied to the Supreme Court. If that
is true how can you then believe that being upset over it is a
“nuisance” and “without any work related content?” On the
other hand if the statements given to the Court and verified by
NASA are in fact true, then what I said to Ms. Lievense is not
sarcastic at all and JPL employees with PIV II badges should
know what their privileges are at KSC regarding the Shuttle
. . . .
Byrnes also reacted to the written warning by modifying his
signature line to read as follows:
According to Form SF-85
Signing is Voluntary
According to Randy Aden, Manager of Security
You can “Sign or Starve, Your Choice”
According to Deputy Director Tattini
With the Injunction, now you can wait.
In Byrnes’ view, this rectified the admonition in the written
warning that the earlier version was not work related. But JPL
disagreed; on April 11 it gave Byrnes a final written warning.
That warning recounted the relevant information from the pre-
vious written warning, how Byrnes had modified the infor-
mation below his signature line, and continued:
This behavior was insubordinate as you violated the April 6,
2011 written warning. Furthermore, your severe lack of
judgment in deciding not to follow my instructions indicated
your lack of respect for me, Mr. Aden, Gen. Tattini and the
positions we hold at JPL.
Over time now there have been occasions when you have
emailed members of management with unprofessional quips
and comments that are unnecessary and offensive. And, you
have sent communications that, in my judgment, contain ac-
cusatory questions regarding claims of questionable merit.
This behavior is harassing and an excessive waste of man-
agement time. If you have a workplace concern you may
bring it to my attention or the attention of the appropriate of-
fice, however, you must raise your concerns respectfully.
Dennis, you are receiving this final written warning due to
your insubordinate behavior, violating the April 6 written
warning, and causing an excessive waste of management time
to deal with your unprofessional actions. Effective immedi-
ately I expect you will cease these unprofessional, inappropri-
ate actions, and I expect you to focus on your work. You
must immediately remove all information from the existing
email signature panel other than your name, official job title
and JPL contact information. Failure to follow any and all di-
rections in this final warning and in your written warning
(April 6, 2011), or failure to adhere to JPL’s rules, policies or
requirements, will result in further disciplinary action, up to
and including immediate termination of your employment.
During the meeting at which he was given this final written
warning Byrnes commented that it was really quite amazing
that this Solicitor General can lie to the Supreme Court and he
was being disciplined for his signature line.
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. Robert M. Nelson
Robert M. Nelson first began working at JPL in 1978; he
chose not to comply with the badging procedure and instead
retired in 2012. At the time he retired, Nelson was a senior
research scientist; he conducted research in nature of the origin
of evolution and the solar system. He worked in the earth and
space sciences division, consisting of about 600 persons.
On January 21, Nelson sent a very lengthy email message
(consisting of 25 pages in paper form) to less than 100 persons
in JPL’s senior research scientist community. The message
gave a description of Nelson’s view of the political aspects
underlying the arguments made to the Supreme Court, a de-
tailed description of the oral argument with Nelson’s commen-
tary, and a lengthy description and reaction to the acting Solici-
tor General’s apparent factual misrepresentation to the Supreme
Court. Nelson’s commentary included the following portions
that JPL singles out as offensive:
The Solicitor General’s ignorance of NASA procedures might
be understandable given the generally low level of knowledge
that Justice Department Officials exhibited throughout this
case. But NASA’s tepid and contrived response now suggests
the agency is working with the Department of Justice in an at-
tempt to mislead the Supreme Court by bolstering [the solici-
tor general’s] dissemination of false information.
. . . .
Susan Foster, a science writer with over four decades of expe-
rience at JPL added, “The NASA I grew up with highly val-
ued its integrity. One of NASA’s core values has been to
‘embrace truthfulness and trust, and to have the moral courage
and obligation to be open, honest and ethical in all that we
do.’ Even though we had serious disagreements over NASA
badging practices, I had believed that the Government would
present their case honestly. It is painful to learn that NASA
and the Department of Justice seem willing to abandon these
values in their effort to trample on the civil liberties of NASA
contractor employees.”
. . . .
Dennis Byrnes, Chief Engineer for Flight Dynamics at JPL
said, “Yesterday, I wrote to John Shannon, NASA Program
Manager for the Space Shuttle Program, requesting that he
clarify this patently misleading statement by the acting Solici-
tor General Katyal. The stated position is so outrageous that
any rational, honest public official should be quick to correct
it, regardless of any personal feelings on this issue before the
Court.”
On April 20, JPL gave Nelson a memorandum that read:
Subject: Re: Final Written Warning
I have recently been made aware of an email that you sent to
the JPL SRS community on January 21, 2011 with the subject
“Report on the recent ruling by the Supreme Court in the
HSPD12 case.” As a reminder, you are on a final written
warning for conduct issues and misuse of JPL resources (June
15, 2007). Your final written warning is still in effect and I
must remind you that, should you fail to comply with the in-
structions contained in that document, or if you violate ethics
policies again or otherwise violate JPL rules, policies or re-
quirements, you will be subject to further disciplinary action,
which may include termination of your employment.
The June 15, 2007 final written warning concerned an email
message that Nelson sent on June 13, 2007. That message too
pertained to the developing badging requirement. According to
JPL in the June 15, 2007 final written warning, Nelson’s mes-
sage violated JPL’s rules for ethical conduct and use of re-
sources and attempting to “ensnare” other employees into doing
so.
I take from the General Counsel’s brief this useful summary
of the recipients of the email messages described above.
Date of
Email
nasa
.gov
hq.n
asa.
gov
jpl.nasa
.
gov
Total
JPL
Affi-
ates
non-
jpl.na
sa.gov
Total
Recipi-
ents
Nelson 1/21/11 0 0 97 0 97
Maxwell 1/27/11 7 0 723 50 773
Banerdt 1/27/11 4 0 513 75 588
D’Addari
o
1/27/11 4 0 615 22 637
Byrnes9 1/27/11 629 8 3,472 1,747 5,219
Total: 107,217
9 Footnote is missing?
10 Although Jt. Exh. 2, which summarizes the total recipients of all
of the January 27, 2011 concerted emails, shows that 8134 is the total
of recipients, this number includes the recipients of employee John
Walker’s January 27 email. John Walker is not a Charging Party,
therefore, 7217 is the accurate count of the total recipients of emails
sent by the Charging Parties in this matter.
C. Past Practice
Having described above JPL’s written policies concerning
emails, I now describe its actual practice. JPL allows employ-
ees to send email messages to other employees concerning JPL
supported events such as ice cream socials held at work, holi-
day parties (including a listing of the music an employee se-
lected to be played there), and a memorial service for a de-
ceased employee. On November 27, 2012, a JPL manager sent
an email message to some 4500 persons soliciting contributions
for the United Way of Greater Los Angeles. He urged employ-
ees to make the contributions via payroll deductions and prom-
ised to award a plaque to the JPL division with the highest per-
centage of persons contributing. A number of employees re-
sponded with angry emails. For example, Scott Allen replied:
For an organization claiming the lack of obligation to
participate, there sure seems to be a lot of pressure to
participate. Email from JPL asking for charity is inap-
propriate. Email from anyone suggesting that THEIR
charity should be MY charity is inappropriate. This
does not belong in the workplace. Period.
Incidentally, recent email statistics indicate that out of the 80+
replies that I have received in support of REMOVING JPL’s
CALIFORNIA INSTITUTE OF TECHNOLOGY JET PROPULSION LABORATORY 513
United Way campaign from their email list, it has been a
strong 98% in the direction of what I have stated above.
Kiri L. Wagstaff replied:
I have the same view as Scott. I also find JPL’s heavy mar-
keting of one particular charity to be inappropriate. If any
charitable solicitations are permitted, then all should be. I was
specifically told last year when I asked that no other charitable
efforts can be promoted at JPL. There is an ethical incon-
sistency here. I think Scott’s solution is best: no charitable
pushed by management at all.
Stanley Butman replied:
Mega dittos Scott!
I started out at JPL contributing, like everybody else (to a des-
ignated ‘favorite charity). However, I froze the amount upon
learning several decades ago that the head of UW was paid a
scandalous $400,000/yr plus perks. . . . I will henceforth re-
duce my contributions to nothing. The whole idea of institu-
tional solicitation is repugnant. It is pressure. Thank you for
courageously speaking out. Let’s hear more from everyone.
Taguhi Arakelian’s email stated, in part “I don’t want my em-
ployer to necessarily know or control to what charities I con-
tribute or refuse to contribute through JPL.”
Richard G. Webster’s email message in this long email string
was:
I agree completely with the comments that limiting choices
and then encouraging participation is an ethical problem. My
wife and I support numerous charitable organizations at the
grassroots level. We find this not only more satisfying, but al-
so more efficient. I think we should run this approach by . . .
the ethics office again.
Larry D’Addario, who as described above had some familiarity
with JPL’s ethics office, wrote in part:
This would seem to be a matter that should be referred to Eth-
ics for an investigation. If they are objective, they will find
management’s action in promoting United Way to be unethi-
cal.
Other employees criticized the critics. Seth Chazanoff emailed:
Oh, come on folks.
Compared with many organizations this is a really low key
campaign.
We have a choice of going on the United Way link . . . or not.
Nobody in management is going to check up on us. . . .
Others responded in a light-spirited nature. After the JPL man-
ager referred to “United Way Superheroes” in an email mes-
sage he sent to employees, Nick Fingland’s email response
was:
I agree with the sentiments expressed by colleagues; however,
if at all possible, I would enjoy a further exploration of super-
hero costumes.
Others became indignant about the growing list of email mes-
sages they were receiving. Chuck Morris wrote: “Please stop
replying all.” Similarly, Janet Mu messaged: “OK . . . really
now, please do not hit ‘reply to all’” and Randy Ram hit “un-
subscribe.” Finally JPL management weighed in as follows:
Hi everyone,
This email distribution list goes to over 4600 people, and it
was not intended to be unmoderated.
Out of respect for people’s time, the . . . management team
would like to ask you not to reply to this email address until
we can fix the situation.
Speaking to your concerns about the United Way, Leslie,
Rene and the team want to hear your feedback about the cam-
paign and they are committed to a positive work environment.
So please direct your comments either directly to Tom or my-
self and do not reply to all to this distribution.
But William Stromberg pushed back, replying to all:
All;
There have been a number of requests distributed through
“Reply to All” not to use “Reply to All” to make your opinion
about this known. I for one have found the responses enlight-
ening and given the source of the original message quite ap-
propriate. It’s easy enough to filter the messages if you don’t
want to receive them.
JPL also allows employees to email each other concerning
van pooling to a farewell luncheon held off campus, a holiday
party held off campus at a restaurant for the cost of $25, retire-
ment receptions held on campus, collecting money for retire-
ment events, lost computer glasses, a black glove that was
found, found car keys, chicken and garlic bread being available
outside the section office next to the copier on a first come, first
serve basis, then pizza, zucchini bread, and cookies being
available at the same location (and a followup message later
announcing that the food was all gone), the birth of an employ-
ee’s child (and a followup message indicating the name of the
child), the death of an employee’s spouse (and money collec-
tion), an employee’s surgery (and money collection),2 the death
of the father of an employee (and money collection), an invita-
tion to come and eat leftovers from an employee’s going away
luncheon, leftover food from an employee’s birthday party, an
account of an employee’s memorial service,3 an invitation to
join a softball team, an invitation to a baby shower, and so on.

2 I give a specific example sent on September 19, 2008:
Hi All,
We collected $300 for. . . . We spent $82 on a beautiful arrangement
from Jacob Maarse to be delivered tomorrow. The cash and cards we
all signed will be taken to her early next week by Leila Meshkat
and/or Margaret Smith. If you want to check out the flower arrange-
ment go the Jacob Maarse website and look for the “Panama” style
flower arrangements. I still have a card on my counter for anyone
who still wants to sign/contribute. Any more cash donated will go
straight to. . . .
3 I give another example. On May 1, 2009, the following was sent:
Hello everyone,
Below is the link to my .mac account and our beloved friend …’s vid-
eo. Please feel free to download and share the link with others. Alt-
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In addition, emails have been used for matters unrelated to
work. For example, on January 26, 2009, an employee sent a
message to about 20 other employees announcing that: “My
niece is selling Girl Scout Cookies again this year. They are
$4.00 a box. Her goal is to sell 200 boxes. I will leave an order
form on Sherrie’s counter this afternoon.” On September 16,
2011, an employee sent the following emails message:
I’m not ordinarily prone to spamming our entire Section, but I
just got this e-mail from Amazon that says today’s Local Dai-
ly Deal is $25 worth of food at Dish in La Canada for only
$12 (52% off)—So I thought I should pass it along in case
anyone wanted to take advantage of it for their lunch today!
Details below (clickable link to get deal). In case the link in
the forwarded e-mail doesn’t work, here is a direct link:
http://...
Dish is located at
734 Foothill Boulevard
La Canada, CA 91011
818-790-5355
I’ve set Reply-To: to my e-mail address so please address all
follow-ups/complaints/rants to me 
. . . .
If you’ve ever heard a killer cover or rockin’ remix, you know
that sometimes even the classics can benefit from an update.
Today’s deal is destined to be a chart-topping hit: Pay just $12
and receive $25 to spend on food and drinks at Dish . . . in La
Canada
This family-style restaurant takes traditional down-home clas-
sics and gives them a gourmet punch-up with organic pro-
duce, artisan ingredients, and new spins on old recipes. Take
a seat at one of the hand-painted tables in the cozy dining
room and feast on dishes like grilled pork chops with spicy
apple chutney, penne pasta tossed with fresh spinach, grilled
chicken, and white-wine sauce, and pitch-perfect gumbo with
andouille sausage. Make sure to compliment your meal with
a selection from the extensive wine list. Trust us—this little
number is bound to get stuck in your head.
The print version of this email message is a bit over 3 pages
long; it was sent to about 200 people.
On May 16, 2011, an employee sent the following email
message to about 4500 persons at JPL:
The Arroyo Seco fire road above JPL is once again open!
The signs have been removed on the lower road as well as
Brown Mtn. Rd. In their place is a warning sign about ero-

hough it should be very straight forward, please let me know if you
encounter any difficulties or problems. I have tested it out on both a
PC and Mac and for the most part it works well. The only glitch is
that it’s a little slow queuing up so I suggest you let it buffer for a mi-
nute or two before playing. For downloading, there are four different
sizes. You can download to an iphone, ipod, computer etc., just
choose the correct size. If none of these options work for you, please
drop me an e-mail and I will send you a DVD.
Lastly, I can’t thank you (the cast of characters in . . .’s life) enough for
the amazing photos you provided. They are truly a treasure that docu-
ments a life well lived and something that . . . and … (. . .’s parents)
can take comfort in. Thank you.
sion, loose rocks, and falling trees. I’ve been up all of the lo-
cal trails over the past month under a research permit from the
Forest Service and can attest to the fact that the road is nearly
gone in places and one bridge on the Arroyo is burned out,
causing a detour. The Arroyo Seco trail is impassable above
Paul Little Picnic area, but the waterfall is very nice. Upper
Brown Mtn Rd is passable, but heavily overgrown. The
flowers are quite nice right now, especially the lupine. El
Prieto trail was almost completely obliterated, but is slowly
becoming easier to negotiate. Remember to watch for rattle-
snakes—I saw two on the trail a couple weeks ago.
On November 2, 2009, Robert Nelson, a plaintiff in the law-
suit as described above, sent an email message concerning the
death of Qian Xuesen a/k/a Tsien Hsueshen as follows:
Dear Colleagues in Division 32.
I noted in yesterday’s Los Angeles Times . . . a report of the
death of Qian Xuesen, one of JPL’s early pioneers in rocketry.
He was 98 and is regarded as father of the Chinese Space pro-
gram. He was named Aviation Week’s Man of the Year in
2007.
During his tenure at Caltech in the 1940’s he was a close as-
sociate of JPL’s founders, particularly Theodore Von Karmin
and Frank Molina, JPL’s first two directors. During the “Red
Scare” period in the late 1840’s and 1950’s, Qian, like Moli-
na, was connected by the police officials to individuals who
were deemed to have inappropriate political beliefs. Without
public trial he was placed under effective house arrest and his
deportation to the Peoples Republic of China was ordered.
However, the deportation was not carried out because the FBI
feared that he would be an asset to the Chinese. Qian stead-
fastly denied the unsubstantiated allegations.
He was released in 1949 and left the United States. Upon re-
turning to China he began his work on the Chinese rocketry
and space program.
Much debate remains regarding the charges against Qian.
Many who have studied the case maintain that Qian might
well have remained in the United States and worked in our
program has he not been subjected to the charges. He might
well have been high in the management of JPL today.
The Qian case is just one more example of the dangers creat-
ed by those who investigate and place judgment upon the po-
litical backgrounds of others.
This is not uncommon, particularly for foreign born scientists.
A more recent example is the imprisonment of Wen Ho Lee.
However, in the Lee case, ultimately the President of the
United States issued a formal apology for the damage done to
Lee by police officials.
The study of history is important because it helps us to devel-
op our responses to contemporary situations. I leave it to each
of us to draw their conclusions about the Qian at their own
comfort levels.
CALIFORNIA INSTITUTE OF TECHNOLOGY JET PROPULSION LABORATORY 515
Nelson was not disciplined for using JPL resources to express
those views. On April 22, 2010, Nelson sent employees the
following email message:
Dear Colleagues in Division 32:
I need not preach to the choir the proposition that the great
scientific problem of the next century is how to address an-
thropogenic[4] contribution to climate change. Recently
NASA Associate Administrator Ed Weiler noted that NASA
and JPL are increasing their commitment to this effort. Dur-
ing the period in which this is happening we employees, as
individuals, might also wish to increase our commitment to
addressing the carbon problem. I would like to suggest for
your consideration a personal act that each of us might under-
take that could have an important leveraging effect in efforts
to educate our communities.
Most of us own homes. We have neighbors who know that
we are scientist at JPL. They hold us in high regard commen-
surate with their perception of the talented engineers and sci-
entists that work here (and properly so). Therefore, measures
that we take in modifying our homes are noticed by our
neighbors and have a mushrooming effect.
So, I suggest that each JPL homeowner seriously make the
investment in installing solar photovoltaic panels on the roofs
of their homes. If we do it, our neighbors will take note.
I speak from the following experience. Several years ago my
wife and I had photovoltaic panels installed on our roof along
with an inverter that synchronized the output to our 220 VAC
electric service. The project was done by a local contractor
and a large fraction of the cost (circa 40%) was shared by the
Pasadena Department of Water and Power. There was an ad-
ditional Federal Tax Credit of several thousand dollars. Since
then we have had an annualized zero balance electric con-
sumption bill.
. . . .
In the time since we have done this several neighbors have
taken notice. A few have made the change also. The Pasade-
na Department of Water and Power has been so excited by the
early success that they now permit homeowners to place as
many panels on their roof as they would like AND THE
DWP IS GLAD TO BUY BACK ANY SURPLUS AT THE
PREVAILING RATE. The reason for this is obvious. In
Southern California we summer daytime peaking electric
consumption. The avoided cost of providing electricity on a
hot summer afternoon is many times the cost of providing
electricity 12 hours later. It works for the DWP, it works for
the consumer and it works for controlling the carbon problem.
Any JPL colleagues who might wish to visit our home are
welcome to do so. Please contact me and I will be happy to
show you the setup. You can see the panels on our roof from
Google Earth. We live at. . . .
LADWP, Glendale, and Burbank utilities have similar pro-
grams. SCE has something similar.

4 To save the reader a trip to the dictionary, Nelson explained that
this means items that are generated through human activity.
If we JPL employees do this we will set an example for our
communities and enhance the value that our community plac-
es in JPL. It is truly a win win.
Nelson was not disciplined for the “controversial” suggestion
that human activity contributes to climate change, nor was he
disciplined for advocating the use of solar panels.
On the other hand, a JPL employee was given a “document-
ed oral warning” on April 21, 2008, for sending an email mes-
sage to a JPL customer; in the message the employee indicated
that the customer stole intellectual property from JPL. In 2008,
JPL terminated an employee during that employee’s extended
probationary period. That employee had been placed on a per-
formance improvement plan to rectify a number of performance
problems. JPL listed about 10 reasons for the employee’s ter-
mination. One of the reasons was because the employee had
use a JPL computer to send an email message inviting certain
JPL employees to a barbeque party at the employee’s home.
Finally, on January 9, 2008, an employee received a document-
ed oral warning selling Mary Kay products while at work and
on JPL time and using JPL’s computer to solicit JPL employees
to purchase those products.
D. The Rule
The complaint also alleges that JPL maintains and unlawful,
overly-broad. That rule is:
Ethics and Business Conduct
. . . .
2.3 As representatives of JPL, employees shall avoid any ac-
tions which could reasonably be expected to adversely affect,
or give the appearance of adversely affecting, the independ-
ence and objectivity of their judgment, interfere with the time-
ly and effective performance of their duties and responsibili-
ties, or discredit the Laboratory.
III. ANALYSIS
A. Written Warnings
JPL’s brief begins:
The Charging Parties used governmental email addresses to
spam more than 7,300 people—including high-ranking NASA
Program Executives—about a personal lawsuit they had lost
against that agency, and to lobby NASA on the issues in that
case. Their lawsuit had nothing to do with any term or condi-
tion of their employment relationship with . . . JPL. Rather, it
challenged new background checks for federal contractors
that were forced on JPL as a result of a Presidential Homeland
Security Directive (HSPD-12), which was implemented na-
tionwide by NASA.
For reasons set forth below, I disagree with this statement at
many levels.
Section 7 of the Act allows employees to engage in concert-
ed activity for the purpose of the mutual aid and protection.
Meyers Industries, 281 NLRB 882 (1986), enfd. sub nom. Prill
v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987). The concerted na-
ture of the employees’ activities and JPL’s knowledge of the
concerted nature are obvious from the recitation of the facts set
forth above. I also conclude that those activities concerned the
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
working conditions of the employees. The employees sought to
limit intrusion into their private lives that was being imposed
upon them as a condition of continued employment. Hoodview
Vending Co., 359 NLRB 355, 357 (2012), Medicenter, Mid-
South Hospital, 221 NLRB 670, 675 (1975). And the fact that
the email messages went to employees and officials of NASA
as well as JPL does not remove their protected nature. Five
Star Transportation, 349 NLRB 42, 47 (2007). These Section
7 activities included filing and pursuing the lawsuit; the Board
has consistently held that concerted legal action concerning
working conditions is activity protected by Section 7. D. R.
Horton, Inc., 357 NLRB 2277, 2278 (2012); Le Madri Restau-
rant, 331 NLRB 269, 275 (2000); Trinity Trucking & Materials
Corp., 221 NLRB 364, 365 (1975); Host International, 290
NLRB 442, 443 (1988). Indeed, the filing of the lawsuit also
constitutes petitioning activity covered by the First Amendment
and the Supreme Court has chastised the Board not to interpret
the Act in a way that tramples on that First Amendment activi-
ty. BE & K Construction v. NLRB, 536 U.S. 516 (2002).
Likewise, the employees’ commentary about their working
conditions and the criticism of the Government’s unsubstantiat-
ed factual representations made to the Supreme Court during
oral argument involve not only activity protected by Section 7
of the Act but also implicate First Amendment freedom of ex-
pression concerns that the Board must consider in determining
whether the commentary and criticisms somehow lost the Act’s
protection. Linn v. Plant Guard Workers, 383 U.S. 53 (1966);
Letter Carriers v. Austin, 418 U.S. 264 (1974); TNT Logistics
North America, Inc., 347 NLRB 568 (2006), revd. sub nom.
Joliff v. NLRB, 513 F.3d 600 (6th Cir. 2008). No extended
analysis is needed to conclude that the commentary and criti-
cisms remained protected conduct under Section 7. I reject
JPL’s contention that Nelson’s comments, described above
became unprotected under NLRB v. Electrical Workers Local
1229 (Jefferson Standard), 346 U.S. 464 (1953). Nelson’s
comments did not disparage JPL’s or NASA’s products or ser-
vices. Rather, his comments expressed indignation over his
factually based concerns that the U.S. Government had mislead
the Supreme Court on a material matter and thereafter refused
to acknowledge or correct the misstate-ment. For similar rea-
sons Byrnes’ comments and signature line were part of the
concerted activities of the employees that remained protected
under the Act.
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 a manner less invasive of the
privacy of their employees. And the NASA badging require-
ments morphed and evolved, apparently in response to the con-
cerns 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. NASA and JPL
chose the manner in which they implemented HSPD 12 and
some employees concertedly complained and sought to change
it. The employees have a Section 7 right to do so. JPL also
argues that the email messages went to “NASA headquarters.”
But the facts at trial show, as described above in the General
Counsel’s chart, that only a small number of emails made it to
NASA headquarters and that JPL was able to identify even a
smaller number in NASA management positions. But all this is
beside the point because I conclude that, in the factual context
of this case, contact with NASA officials involved with JPL is
conduct protected by Section 7.
I now consider whether the employees lost the protection of
the Act by using NASA computers and email systems to send
their messages. Employees do not currently have a Section 7
right to use their employer’s computers to engage in protected
concerted or union activity; if they do so without permission
they may be lawfully disciplined for doing so. Register Guard,
351 NLRB 1110 (2007).5 However, an employer may not al-
low use of its computers for nonwork-related activities and
discriminate against use of the computers for similar Section 7
activities. Register Guard, id. In this case, JPL has allowed
use of its computers for a wide range of nonjob-related purpos-
es, many of which were similar in kind, length, and scope of
distribution as the messages sent by five employees. I have
considered the testimony of Cozette Hart, JPL’s director of
human resources; she has held that position for about 8 years.
Hart explained that JPL allows its employees to use its comput-
er and email systems to communicate with each other concern-
ing JPL sponsored events such as retirement parties, ice cream
socials, and the like. She also explained that JPL permits em-
ployees to send email messages on matters such as items that
have been lost or found, people who are sick or who have died,
birth announcements, and the like. She aptly described these
communications as being “part of the fabric of every working
group in every day work operations.” She continued: “[T]hat is
part of, in a work group, what people inform each other about.”
But she did not explain why JPL allowing NASA’s computers
to be used by employees to make these communications. Hart
then declared that JPL did not consider these communications
to be “spam” under JPL’s rules in particular or, based on her
experience in the human relations field, in human relations
operations generally. Hart also frankly admitted that certain
email communications that were sent concerning the sale of
Girl Scout cookies, the lunch specials at a local restaurant, and
United Way antisolicitation comments did not fit comfortably
as permissible under JPL rules. But her excuse is that no one
complained to her about these communications and that JPL
does not otherwise police the use of its computers to find viola-
tions of its rules. She criticizes the emails at issue in this case
for “[l]obbying for support and lobbying [NASA] to change
their position.” This testimony is interesting for several rea-
sons. First, the written warnings do not specifically mention
any violations of JPL’s lobbying policy, although JPL has one.6
This leads me to conclude that JPL is now searching for addi-

5 Enfd. in part sub nom. Guard Publishing v. NLRB, 371 F.3d 53
(D.C. Cir. 2009).
6 Sec. 2.4 of the Commercial and Political Endorsements policy
states:
Federal laws and regulations, as well as our prime contract
with NASA, prohibit lobbying by JPL employees. Unsolicited
communications with legislative or executive branch agencies that
could be interpreted as lobbying shall be vetted by the Office of
Legislative Affairs.
CALIFORNIA INSTITUTE OF TECHNOLOGY JET PROPULSION LABORATORY 517
tional 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 Act pro-
tects. Eastex Inc. v. NLRB, 437 U.S. 556 (1978). She com-
plained that the size of the email distributions, taken together,
was “unprecedented.” But this assessment only highlights the
concerted nature of the complaints about working conditions.
And given that the messages went only to persons who, for the
most part, might be impacted by the change of badging re-
quirements, they highlight the pervasive nature of the new
badging requirements on JPL’s work force. I have also consid-
ered the testimony of Leslie Lynn Livesay, JPL’s director for
engineering and science; she oversees about 3500 employees.
Livesay indicated that she believes the employees violated JPL
policy by sending the email messages to employees and NASA
related workers because the messages did not clearly indicate
that the messages did not represent the views of JPL. I reject
this testimony. Anyone who had been paying the least bit of
attention to the long, contentious struggle concerning the badg-
ing 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. Livesay also claimed
that she regarded the messages as being political in nature be-
cause they discussed the badging requirements and the Su-
preme Court’s decision regarding those requirements. But I
have concluded above that the badging requirements and con-
sequent litigation are matters concerning working conditions;
JPL cannot simply label them as “political” and thereby escape
following the law of the land. Livesay indicated that Nelson’s
message violated JPL policy because it indicated that the “De-
partment of Justice and NASA Headquarters had lied to the
Supreme Court” regarding how JPL could get within 6–10 feet
of the Space Shuttle while it was being repaired or fueled. But
I have disposed of this argument too above. Regarding the
numerous email messages protesting JPL’s manner of solicita-
tion for the United Way, Livesay’s excuse for not disciplining
those employees was that felt:
[T]his was our fault that this dialogue ensued because we had
left the reply all capability open, so for this specific incident, I
felt that we would not take, I decided not to take specific ac-
tion.
And what about the employee in that email ruckus who did not
hit the “reply to all” but rather tailored his response to a specif-
ic group of employees? Livesay’s answer: “So when it came to
my attention, I did not take action and I should have.” In other
words, Livesay had an excuse for each potential breach of JPL
policy concerning use of computers and sending email messag-
es except for when the employees used the computers to engage
in concerted efforts to complain about the badging require-
ments. I reject these excuses as created after the fact. I con-
clude that the employees did not lose the protection of the Act
when they used NASA’s computers and email systems to send
their messages.
Having concluded that the employees engaged in concerted
activity protected by the Act, that they were disciplined specifi-
cally for that reason, and they did not otherwise engage in con-
duct whereby they lost the protection of the Act, an analysis
under Wright Line, 251 NLRB 1083 (1980), is unnecessary.
Register Guard, supra at 1120. By issuing written warnings to
Robert Nelson, Dennis Byrnes, Scott Maxwell, Larry
D’Addario, and William Bruce Banerdt because they engaged
in protected, concerted activities, JPL violated Section 8(a)(1).
B. The Rule
A rule or policy violates Section 8(a)(1) if it can reasonably
be read by employees to chill their Section 7 rights. Lafayette
Park Hotel, 326 NLRB 824 (1998), enfd. 203 F.3d 52 (D.C.
Cir. 1999); Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004). A rule will also violate Section 8(a)(1) if it has been
applied to restrict Section activity. Lutheran Village, id. at 647.
The General Counsel argues that section 2.3 of JPL’s ethics and
business conduct, set forth above, is unlawful in both respects.
Concerning his first argument, the General Counsel focuses
on only the following portion of the rule that instructs employ-
ees to avoid any action which “could reasonably be expected to
. . . discredit” JPL. The General Counsel argues that the rule
can reasonably be read to preclude protected activity such as
filing an unfair labor practice charge, statements or discussions
that criticize JPL’s employment practices, or protest its pay and
treatment of its employees.
The Board and its judges have not so far found a rule using
the word “discredit” to be unlawful. To the contrary, when the
Board and its judges have considered rules concerning “dis-
credit” they have found the rules to be lawful. Ark Las Vegas
Restaurant Corp., 335 NLRB 1284, 1291 (2001); Flamingo
Hilton-Laughlin, 330 NLRB 287, 288–289 (1999); Central
Peninsula Hospital, JD(SF)–37–12 at 21, Pleasant Travel Ser-
vices. JD(SF)–38–10 at 3. The General Counsel contends that
section 2.3 is similar to the rule found to be unlawful in Karl
Knauz Motors, 358 NLRB 1754 (2012). That case involved a
rule that prohibited employees from using “language which
injures the image or reputation of the Dealership.” The General
Counsel also cites Costco Wholesale Corp., 358 NLRB 1100
(2012). That case involved a rule that prohibited employees
from making comments that “damage the Company, defame
any individual or damage any person’s reputation.” Neither
case involved a rule that condemned the use of the word “dis-
credit.” Granted, my dictionary7 defines the verb form of dis-
credit as follows: “1. To damage in reputation; to disgrace;
dishonor. 2. To cast doubt on; cause to be distrusted. 3. To
give no credence to; disbelieve.” So the word “discredit” may
be synonymous with the words used in those two cases. But
the Board did not distinguish the “discredit” cases and I cannot
do so, so I will leave that task to the Board. I conclude, as I did
in Central Peninsula Hospital, supra, that employees would not
reasonably read section 2.3 as forbidding activity protected by
Section 7.
Some background is necessary before I address the merits of
the General Counsel’s second argument. As indicated above,
the complaint alleges that JPL used this rule in giving the em-
ployees their written warnings. In its original answer, JPL
admitted that allegation of the complaint. However, after the
hearing closed but before briefs were due, JPL moved to amend

7 American Heritage Dictionary (New College Edition) (1976).
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its answer to deny that it had relied upon this rule. JPL’s attor-
ney persuasively argued that the admission had been a mistake.
Because I did not want to find a violation based on a mistaken
pleading, I granted the motion to amend. However, because I
felt that the General Counsel might have relied upon the admis-
sion and not offered evidence to support the allegation, I held a
conference call and invited the General Counsel to move to
reopen the record if he had additional evidence that he wished
to present on the matter; I indicated my inclination to grant the
motion to reopen the record. I also indicated that I would con-
sider the earlier admission as part of the record and I would
assess it against the entire record. I also allowed for the possi-
bility that the General Counsel might move to amend the com-
plaint in light of the testimony at the hearing that JPL relied on
section 2.2 and not section 2.3 of its ethics policy in meting out
the discipline. The General Counsel instead filed a motion for
special permission to appeal my ruling to the Board.
There is no direct or even indirect reference to section 2.3 in
the written warnings given to the employees. Rather, the justi-
fications in the written warnings concerning the ethics policy
seem entirely unrelated to that policy. Nor was it mentioned in
any of the meetings JPL held with the employees concerning
the disciplines. I conclude the earlier admission by JPL was
simply a mistake. I therefore dismiss this allegation of the
complaint.
CONCLUSION OF LAW
By issuing written warnings to Robert Nelson, Dennis Byr-
nes, Scott Maxwell, Larry D’Addario, and William Bruce
Banerdt because they engaged in protected, concerted activities,
the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, California Institute of Technology Jet Pro-
pulsion Laboratory, Pasadena, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Disciplining or otherwise discriminating against any em-
ployee because they engage in protected, concerted activities.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful written warn-
ings, and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the written warnings will
not be used against them in any way.
(b) Within 14 days after service by the Region, post at its fa-
cility in Pasadena, California, copies of the attached notice
marked “Appendix.”9 Copies of the notice, on forms provided
by the Regional Director for Region 31, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since April 6, 2011.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
CALIFORNIA INSTITUTE OF TECHNOLOGY JET PROPULSION LABORATORY 519
WE WILL NOT discipline or otherwise discriminate against
any of you because you engage in protected, concerted activi-
ties.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful written warnings
given to Robert Nelson, Dennis Byrnes, Scott Maxwell, Larry
D’Addario, and William Bruce Banerdt, and WE WILL, within 3
days thereafter, notify each of them in writing that this has been
done and that the written warnings will not be used against
them in any way.
CALIFORNIA INSTITUTE OF TECHNOLOGY JET
PROPULSION LABORATORY