Sean Penn, Free Speech, and Labor Law

An interesting incident, which led to a National Labor Relations Board decision (CORE & Rojas) Sept. 20. First, an excerpt of the facts involving Community Organized Relief Effort, a charity co-founded by noted actor Sean Penn (known in part for his past anger management problems):

On January 29, 2021, the New York Times (NYT) published an article about [a COVID] Vaccination Day event [organized at Dodger Stadium by the L.A. Mayor, and staffed by, among others, some CORE employees]. The article detailed what occurred during the event and included interviews with various individuals, participating organizations, and others that attended and/or worked the event.

After that, two anonymous commenters, who either were CORE employees or at least were so perceived by Penn, posted:

[1.] I work at the Dodger Stadium site and this article is inaccurate. The line about no honking cars is true. However, I had patient after patient yelling and complaining about the four hour wait and lack of restrooms. Sure, no one honked their horn, but a driver threatened to run over one of our staff members unless he let them on site. What the article does not mention is that we have staff working 18-hour days, 6 days a week, without the backup coverage to be able to take time off. This is an OSHA violation and it exists because the mayor ordered that we transition from a test site to a vaccination site in less than a week. If we had more time to transition, we wouldn't have staff working these hours without the opportunity to take breaks—they are schedulers and are essential to the function of the site. Without them, we wouldn't be vaccinating. The mayor more or less ordered an OSHA violation. There is a shipping container on site that is a designated space for overworked staff to go cry in. If you're not let into this shipping container, it's because staff are crying inside. Garcetti created these conditions and looks like a hero for it. Additionally, Garcetti got to skip the line for vaccine doses. Our staff wait in a queue to receive drawn vaccines. Garcetti went to the front of the line every time and the patients in his line received expedited service. Additionally, the line about his phone number is a violation of our policies—no one gets special treatment.

[2.] I am working on the ground at Dodger. We do NOT get krispy kreme for breakfast. In fact, we usually DON'T get breakfast, just coffee. And the lunch is NOT subway. It's the same old lettuce wraps every clay. It's free lunch for staff/volunteers so I'm not complaining but still…not subway. Also, it's NOT wifi issues with the [iPads]. It's server issues/bugs with the Carbon. Health server that we are using to log people in. Other websites will load and the iPads work perfectly fine, but the Carbon Health app/site is still in beta and is EXTREMELY buggy and slow. Someone told me once they checked in 3 patients in 55 minutes because of how slow the Carbon website was. Lastly, the day the line was over 4 hours long was because the mayor decided to let over 1,000 police officers cut the line and get vaccinated without an appointment, throwing the entire system off. On a typical day the line will not be that long.

The administrative law judge concluded that this may have constituted "complaining about their terms and conditions of employment," which is protected by labor law against employer retaliation.

After the comments, Penn either wrote or had CORE's CEO write this email:

A Message To All CORE Staff From Sean Penn,

As a fellow citizen, I first want to express my extreme gratitude for your dedicated and inspiring work on behalf of your communities. [Further praise of employees and statement of Penn's commitment to CORE omitted; see the full decision for more. -EV]

It is in this spirit, and for this reason, that I am directly reaching out to each and every one of you to address a grave concern. In my now nearly fifteen years of working in disaster response beginning in Hurricane Katrina (and I'll spare you my "I walked twenty miles through snowy mountains to get to school" stories), the greatest lesson I have learned is that valuable, organized response is most vulnerable to destruction from within. Time and time again, I have seen people and countries betrayed by the pettiness of in-fighting from within the very organizations they most relied on. We do not ask, ever, that loyalty is blind or anything else that would trade accountability for the efficiency and empathy that we commit to those we serve or to each other. We have strong complaint procedures and endless other internal avenues for productive criticism. But, as a disaster response organization, each of our first accountabilities to ourselves must accept that our work can never ever be compared like the apples to oranges of other workplaces.

At the outset, CORE, of course, takes seriously and complies with OSHA and all applicable regulations. OSHA has an essential role in all workplaces, and while CORE does everything in its power to comply not only with the protocols of OSHA, but also the basic laws of common sense, we must accept that we have taken on jobs that must push that envelope virtually as far as is reasonably allowable, while fairly expecting that OSHA too, in its commitment to public service, will exercise the common sense understanding that by necessity, the structure of the work and workplace we provide demands an adaptability that is not cemented by pre-pandemic precedent.

And any among us who don't find themselves built in this way for the mission at hand, any of us who don't recognize our inherent duty to prop each other up, any of us who might find themselves predisposed to a culture of complaint, have a much simpler avenue than broad-based cyber whining. It's called quitting. Quit for CORE. Quit for your colleagues who won't quit. Quit for your fellow human beings who deeply recognize that this is a moment in time. A moment of service that we must all embody sometimes to the point of collapse. That's my job. And that's your job.

I am embarrassed to have to preach these words to the very people who are so dominantly beyond the proverbial choir. Those who, in effect, are every bit the leaders of CORE that I am. This message is not for you. And this message is not a random condemnation of those who may find themselves, for whatever reason, unwilling or unequipped to continue with CORE.

I'm sure many of you are correctly assuming that what has initiated this particular communiqué began with a pair of highly visible comments on a major news outlet's platform by two people who anonymously represented themselves as CORE staff. Those comments, which claimed to be revealing of inaccuracies about our vaccine effort at Dodger Stadium in a news report, were in themselves not only a propagation of deeper inaccuracies, but also indulged the personal opinions of those alleged CORE staffers in a way that violates everything that keeps us whole. We are an organization built on partnerships. Extraordinary partnerships. Partnerships in California. Partnerships in the Navajo Nation. Partnerships in Port-au-Prince, Washington, D.C., Fulton County, and numerous others. An undeniable example of a valued trust, mentorship, and partnership is that which CORE has with the City of Los Angeles and its LAFD. This high impact partnership did not happen by accident, and it didn't happen overnight. It happened because all the CORE strategic and operational inputs made by so many of you, and those you stand shoulder-to-shoulder with every day, earned it. It also happened because of the unique faith offered CORE by Los Angeles city leadership.

So, when two from within our ranks make unilateral decisions to indulge their own whim of dissent in the low-hanging fruit of cyberspace, and to, in this situation, register such obscene critiques of valued partners, or CORE itself, the only thing they will have contributed to is a lessening of CORE's impact in the fight against COVID-19. A fissure that could collapse a lifesaving enterprise. And to whoever authored these, understand that in every cell of my body is a vitriol for the way your actions reflect so harmfully upon your brothers and sisters in arms. I have taken counsel and here will refrain from using the words with which I would otherwise choose to describe the character of your actions.

[Discussion of the Mayor's role in CORE's participation omitted. -EV]

[Further praise of employees and of the vaccination effort omitted. -EV]

My deepest gratitude and respect,

Sean Penn

Chairman and Co-Founder of CORE

Labor law recognize employers' rights to speak to their employees, so long as the speech doesn't threaten retaliation or promise certain benefits; but it is more open to finding implied threats in the employment relationship, see NLRB v. Gissel Packing Co. (1969), than would be found elsewhere:

Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer's rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in § 7 and protected by § 8 (a) (1) and the proviso to § 8 (c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.

The administrative law judge concluded that Penn's speech, in context, wasn't sufficiently threatening to be forbidden by labor law, but the Board reversed in relevant part and sent the case back for further findings:

The judge found that Penn's email was merely communicating his response to disparaging comments about the vaccination event, rather than conveying unlawful threats to prevent employees from complaining about their terms and conditions of employment. The judge also expressed the view that "this email … was just Mr. Penn's rallying cry to employees." The judge further stated: "I cannot read Penn's email and objectively conclude that his statements intended to coerce, restrain, or threaten anyone with unspecified reprisals by allegedly disparaging employees who took their work-related complaints outside of [CORE]." In addition, the judge found that the record was devoid of evidence that any employee perceived Penn's email as a veiled threat to terminate employees for taking work-related complaints outside [CORE]. Further, the judge found that the record demonstrates that no one was terminated, disciplined, or suffered any adverse consequences for complaining on the New York Times website about the vaccination event. Thus, the judge concluded that [CORE] did not violate Section 8(a)(1) as alleged and that [CORE] was entitled to judgment as a matter of law….

As we recently explained, summarizing our case law:

The Board has long held that the standard to be used in analyzing statements alleged to violate Section 8(a)(1) is whether they have a reasonable tendency to coerce employees in the exercise of their Section 7 rights. Intent is immaterial. The Board considers the totality of circumstances in assessing the reasonable tendency of an ambiguous statement or a veiled threat to coerce. Whether or not the employee changed their behavior in response is not dispositive, nor is the employee's subjective interpretation of the statement. The Board therefore considers the total context of the alleged unlawful conduct from the viewpoint of its impact on employees' free exercise of their rights under the Act.

In finding that the General Counsel failed to meet her burden of proving the threat allegation, the judge did not apply the correct standard, as reflected in her reliance on immaterial considerations, such as [CORE]'s perceived intent, the lack of evidence that any employees understood Penn's remarks as a threat, and the fact that no employees suffered adverse consequences related to the remarks.

Therefore, we have decided to reverse the judge's ruling granting [CORE]'s motion for summary judgment and to remand the case to the judge for further consideration in light of this decision. On remand, the judge shall reopen the hearing to allow [CORE] an opportunity to present evidence in support of its defenses to the Section 8(a)(1) complaint allegations and for the General Counsel to present rebuttal evidence….