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BORDELL v. GENERAL ELEC. CO.

March 16, 1990

FRANK BORDELL, DOUGLAS ALLEN, BUSINESS AGENT LOCAL 301AE, INTERNATIONAL UNION OF ELECTRICIANS, ELECTRICAL, SALARIED MACHINISTS & FURNITURE WORKERS, AFL-CIO AND LOCAL 301AE, INTERNATIONAL UNION OF ELECTRICIANS, ELECTRICAL, SALARIED MACHINISTS & FURNITURE WORKERS, AFL-CIO, PLAINTIFFS,
v.
GENERAL ELECTRIC COMPANY, A.E. KAKRETZ, MANAGER, GENERAL ELECTRIC CO., UNITED STATES DEPARTMENT OF ENERGY AND HONORABLE JOHN HERRINGTON, SECRETARY, U.S. DEPARTMENT OF ENERGY, DEFENDANTS.



The opinion of the court was delivered by: McCURN, Chief Judge.

MEMORANDUM-DECISION AND ORDER

Introduction

This is an action by current and former employees of the General Electric Co., Inc., employed at the Knolls Atomic Power Laboratory ("KAPL") in Niskayuna, New York, and Local 301AE, International Union of Electricians, Electrical, Salaried Machinist and Furniture Workers of the AFL-CIO ("IUE"), seeking declaratory and injunctive relief. Plaintiffs challenge a newsletter issued by the defendants which the plaintiffs allege is an unconstitutional infringement of their First Amendment rights to free speech and association. Plaintiffs further allege that the newsletter violates 5 U.S.C. § 7211, which protects employees' right to petition Congress, and Public Law 100-440, Section 619 of the Treasury, Postal Service and General Appropriations Act of 1989. Plaintiffs seek declaratory judgment and injunctive relief preventing defendants from enforcing the directive against any current or former employees and requiring defendants to give notice to employees that the directive is rescinded. Defendants, the General Electric Co., Inc. ("GE"); A.E. Kakretz, general manager of KAPL; the Department of Energy ("DOE"); and John S. Herrington, the Secretary of Energy, have moved for dismissal pursuant to Fed.R.Civ.P. 12, or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiffs have cross-moved for summary judgment pursuant to Fed.R.Civ.P. 56.

Background

Plaintiffs Frank Bordell and Robert Stater are former employees at KAPL, and plaintiff Douglas Allen is a current employee. The three are members of plaintiff IUE. The defendant GE performs research and development work pertaining to the United States Naval Nuclear Propulsion Program at the KAPL, under a government defense contract with the DOE.

The federal government owns the land, buildings, machinery and equipment at the KAPL site, and provides funding for the GE workforce there. GE is responsible for the security of the plant, which includes classification and control of information and documents, security checks on personnel, and supervised access into and out of the plant.

GE periodically issues newsletters to employees pertaining to security procedures and policies at the plant. On September 15, 1988, GE circulated a "Security Newsletter" titled "`No Comment' Policy for Classified/Sensitive Information." The newsletter warned employees not to discuss classified and "sensitive unclassified" information outside of the plant, even if such information had entered the public domain through another avenue, such as a news report. In addition, the newsletter stated that "[i]t is best to avoid any discussion of [Naval Nuclear Propulsion] Program work," and recommended that questions regarding such discussions could be directed to the KAPL classification officer. The newsletter also stated that:

    "[a]nother important security aspect of the
  Naval Nuclear Propulsion Program is that all
  public releases of information concerning program
  work (i.e. technical meetings, forums, etc.) must
  be reviewed and approved prior to release.

The letter stated further that:

  while employed at KAPL, if you are required to
  make statements about Program work to the public,
  formal approval must be obtained by use of a
  KAP-418 form.

(emphasis in original)

Finally, the letter informed KAPL employees that unauthorized release of information could jeopardize their jobs and result in fines of up to $100,000 and up to life imprisonment.

The plaintiffs commenced this action on November 4, 1988, alleging that the newsletter was an impermissible restraint on free speech, that the term "sensitive unclassified information" contained in the newsletter is unconstitutionally vague, that it imposes a prior restraint violative of the First Amendment, and that it violates 5 U.S.C. § 7211*fn1, and P.L. 100-440, Section 619 of the Treasury and Post Office Appropriations Act ("Section 619").*fn2 Specifically, the plaintiffs allege that the newsletter would inhibit their efforts to disclose health and safety threats to workers and the public created by KAPL's operations.

GE subsequently issued another newsletter in July 1989, the stated purpose of which was to "[supplement] the September 15th edition and [elaborate] on the previous guidance." The second newsletter is much more detailed than the first, and enumerates a number of the statutory and regulatory restrictions on the release of classified and sensitive unclassified government information. It states that, "[a]s is the case with all Security Newsletters, this Newsletter must be read in the context of the applicable statutes and regulations referred to below." The July 1989 newsletter also notes that:

    it is the policy of the Departments of Energy
  and the Navy and of the General Electric Company
  that the systems for controlling dissemination of
  classified and otherwise militarily sensitive
  information are not to be used to prevent proper
  reporting of matters involving ...

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