Sean Penn Non-Profit Faces Trial Before National Labor Relations Board Adminisrativer Law Judge

Worker rights to engage in protcted concerted activity under the National Labor Relations Act must be protected and not neglected. They were neglected under Trump and are being protected under Biden. No employer is above the law, including non-profits. The late David Brian Wallace and I both brought NLRB actions against our employers in Washington, D.C. and we both won. The organizations in quo were the American Association for the Advancement of Science (SCIENCE Magazine) and the Government Accountability Project, Inc.  

Brian and I both admired Sean Penn as an actor and a liberal, and I still do. 

But Sean Penn's impassioned e-mail broke the law, it would appear, and an Administrative Law Judge of the National Labor Relations Board will hold a hearing in January. Like me, Sean Penn is then scion of progressive parents, and I know he will learn from this.

Footnote: I found it was helpful and fruitful having Brian, or my mentor, the late U.S. Department of Labor Chief Administrative Law Judge Nahum Litt, or another good friend or colleague, to read my passionate writing before hitting the "send" button on the fax machine or putting it in the mail.  To Sean Penn: I would be happy to review drafts in future.

From The New York Times:

Sean Penn the Focus of N.L.R.B. Amid Comments on Hours and Food at Vaccine Site

Two online commenters complained of working 18-hour days and not getting food from Krispy Kreme or Subway. Penn saw “narcissism” and “betrayal.”

From left, Sean Penn, Mayor Eric Garcetti and Gov. Gavin Newsom at the vaccination site at Dodger Stadium in Los Angeles, that Penn and his group CORE helped run. Penn faces an N.L.R.B. complaint.Credit...Pool photo by Irfan Khan

By Colin Moynihan

Published Oct. 28, 2021Updated Oct. 31, 2021

A nonprofit group co-founded by Sean Penn is facing a National Labor Relations Board hearing over an accusation that he implicitly threatened employees after complaints about long hours and the food served during a Covid-19 vaccination effort.

In January the group, Community Organized Relief Effort, played a key role in an operation to administer vaccines in a parking lot of Dodger Stadium in Los Angeles.

The work drew praise, but an anonymous online comment posted in response to a New York Times article late that month about the vaccinations said that employees were working up to 18 hours a day. A second comment, also anonymous, said there had been a lack of Krispy Kreme doughnuts and Subway sandwiches — food described by the Times report as being at the site.

Soon, CORE employees were sent a long, impassioned email by Penn. He wrote that he was grateful for their work and mindful of his responsibilities in “the race against mutations and the fight against the current strains of Covid-19.”

He also appeared to suggest that the online commenters were guilty of “reckless narcissism” and “broad betrayal.”

And Penn proposed that those who might feel inclined to gripe online amid a pandemic ought to simply leave the group instead.

“Any of us who might find themselves predisposed to a culture of complaint, have a much simpler avenue than broad-based cyber whining,” he wrote. “It’s called quitting.”

A labor lawyer in Los Angeles read the message after it was published, in early February, along with an accompanying article, by The Los Angeles Times. That lawyer, Daniel B. Rojas, said Penn’s remarks struck him as unlawful and that he quickly filed a charge with the N.L.R.B. The N.L.R.B. process calls for a charge to be followed by an investigation, which can lead to a complaint or a dismissal.

In this instance, the N.L.R.B. issued a complaint, dated Oct. 25, saying Penn’s email violated federal labor law. Penn had, the complaint added, “impliedly threatened” employees with reprisals or discharge.

A hearing before an administrative law judge has been scheduled for January.

A lawyer for CORE and for Penn said that “on principle and merit,” both had rejected a settlement offer from the N.L.R.B. that did not involve any fine or monetary payment, and will “vigorously contest and fight” the charge.

“Despite its utter lack of legal merit, the N.L.R.B.’s General Counsel and Regional Director have decided to waste federal resources and taxpayer dollars by filing an ill‐advised and meritless lawsuit, even as CORE continues its groundbreaking work,” a statement from the lawyer, Mathew S. Rosengart, said. “The N.L.R.B.’s actions to distract CORE from its crucial mission for a case where no employees were harmed, are shameful.”

In May, Rosengart and two colleagues sent a letter to the N.L.R.B. saying the complaint about long hours was false and that charges by Rojas were “utterly frivolous” and should be dismissed. Penn’s email, the lawyers added, was “a motivational rallying cry.”

The N.L.R.B. general counsel, Jennifer Abruzzo, said in a statement on Thursday: “Although CORE engages in important and admirable work, like all employers, it must respect the right of its employees under the National Labor Relations Act to engage in protected concerted activities, such as discussing matters of mutual concern with one another and bringing workplace concerns to the public, federal agencies, or other third parties.”

This week, Rojas explained his motive in filing the charge, writing in an email: “It’s neither selfish nor un-American to discuss your wages or working conditions with the public.”

By many measures, CORE’s pandemic work has been a success. The group, which Penn co-founded after the 2010 earthquake in Haiti, has provided free coronavirus testing in California and beyond. At Dodger stadium, CORE assisted the Los Angeles Fire Department, which led an operation that administered nearly 56,000 vaccinations in its first nine days.

The description of the parking-lot scene in The Times article in late January included: “There is Krispy Kreme for breakfast and Subway for lunch (the fruit on the tables is for poking with syringes during training sessions). At the trailers marked ‘Vaccine Draw,’ runners elbow past Mr. Penn, slide their empty coolers inside and await a fresh batch of syringes.”

Among 150 comments in response to the story were the two that purported to come from CORE workers. One, attributed to “CORE staff,” referred to the federal Occupational Safety and Health Administration, writing: “We have staff working 18 hour days, 6 days a week,” adding: “This is an OSHA violation.”

A second commenter, “staff #2,” wrote: “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 day. It’s free lunch for staff/volunteers so I’m not complaining but still … not subway.”

The day after the article ran, Penn’s message addressed to “All CORE Staff” went out, citing “a pair of highly visible comments on a major news outlet’s platform.” He began by commending CORE workers and wrote that he is consumed with the fight against Covid: “I awaken pre-dawn and pass out post-midnight every morning and every night, pulling at my hair and pounding pavement.”

Penn wrote that CORE has strong complaint procedures and complies with OSHA regulations, but also warned against “obscene critiques” and stated that “valuable, organized response is most vulnerable to destruction from within.”

And although he wrote that he had “taken counsel” and would refrain from using certain language, Penn left little doubt about his feelings toward the commenters.

“And to whoever authored these,” he wrote, “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.”

Correction: Oct. 31, 2021

An earlier version of a headline with this article described incorrectly the vaccination site at Dodger Stadium. The Los Angeles Fire Department led the operation there, with Sean Penn and the nonprofit CORE assisting. The effort was not led by Mr. Penn.