Community Organized Relief Effort

373 NLRB No. 106 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Community Organized Relief Effort and Daniel Rojas. Case 31–CA–272228 September 20, 2024 DECISION AND ORDER REMANDING BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On April 17, 2023, Administrative Law Judge Lisa D. Ross issued the attached decision. The Respondent and the General Counsel filed exceptions and supporting briefs. In response, the Respondent and the General Coun- sel filed answering briefs, and, thereafter, both filed re- ply briefs. 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,1 and has decided to af- firm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order Re- manding. This case involves allegations that the Respondent, a nonprofit organization with a principal location in Los An- geles, California, violated Section 8(a)(1) of the National Labor Relations Act when, on January 29, 2021, the Re- spondent, through its cofounder Sean Penn, emailed all employees and impliedly threatened them with unspeci- fied reprisals and discharge for taking their work-related complaints to the public or third parties. As the judge noted, the facts giving rise to the Respondent’s allegedly unlawful conduct are largely undisputed. As relevant here, following the January 29, 2021 publication of a New York Times article about a COVID-19 vaccination event at Dodger Stadium involving the City of Los Angeles and the Respondent, two anonymous commenters posted their opinions about the event on the New York Times website. Thereafter, Penn either wrote or directed the Respondent’s CEO, Ann Lee, to write an email to all employees entitled 1 The Respondent and the General Counsel each contend that the op- posing party’s exceptions and briefs should be disregarded because they are procedurally deficient under Sec. 102.46(a) of the Board’s Rules and Regulations. We find that both parties’ exceptions and briefs substan- tially comply with the relevant rules and are sufficient to warrant Board consideration. 2 The full text of the email is set forth in the judge’s decision. 3 As explained in more detail below, at the hearing the Respondent orally made a “motion to dismiss and/or for a directed verdict,” arguing that the General Counsel failed to prove the complaint allegations. The judge construed the Respondent’s motion as a motion for summary judg- ment, and that is how we refer to it here. “A Message to All CORE Staff From Sean Penn.”2 The complaint alleges that several statements in this email were unlawful threats. Before the judge, the Respondent argued that the Board lacked jurisdiction over it, primarily asserting that it was a political subdivision and/or a single employer with the City of Los Angeles. The Respondent also challenged the merits of the alleged unfair labor practices. As explained in more detail below, after the General Counsel’s case-in- chief, the judge granted the Respondent’s motion for sum- mary judgment3 and recommended dismissal of the com- plaint. In doing so, the judge found that the Respondent is subject to the Board’s jurisdiction. As to the merits, however, the judge found that the Respondent was entitled to judgment as a matter of law because, in the judge’s view, the General Counsel failed to establish that state- ments in the January 29, 2021 email constituted unlawful threats of reprisal. As explained below, we adopt the judge’s finding that the Respondent is subject to the Board’s jurisdiction, but we reverse the judge’s grant of the Respondent’s summary judgment motion. Having done so, we remand the case for further appropriate action. A. The judge found that the Respondent is subject to the Board’s jurisdiction. On exception, the Respondent re- news its arguments, which the judge rejected in a bench ruling, that it is exempt from the Board’s jurisdiction as a political subdivision under Section 2(2) of the Act, as in- terpreted in NLRB v. Natural Gas Utility District of Haw- kins County, 402 U.S. 600 (1971) (Hawkins County), and that, in the alternative, the Board should decline to assert jurisdiction over the Respondent on discretionary grounds.4 In light of the Respondent’s exceptions, we af- firm the judge’s assertion of jurisdiction over the Re- spondent. In so doing, we adopt the judge’s finding that the Respondent meets the definition of an employer under Section 2(2) of the Act and the applicable monetary juris- dictional standards. We also affirm the judge’s conclusion that the Respondent is not exempt from the Board’s juris- diction as a political subdivision under Hawkins County. Specifically, we adopt the judge’s finding, made in her 4 The Respondent also argues that it is exempt from the Board’s ju- risdiction as a joint employer with its government partners and that as- serting jurisdiction over the Respondent interferes with the separation of powers under the U.S. Constitution. We reject both these arguments be- cause the Respondent did not present them to the judge and instead raised them for the first time on exceptions. Yorkaire, Inc., 297 NLRB 401, 401 (1989) (argument waived where party failed to raise it to the judge), enfd. 922 F.2d 832 (3d Cir. 1990). In any event, the Respondent’s argu- ments provide no basis for declining to assert jurisdiction over the Re- spondent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 bench ruling, that the Respondent does not meet the first prong of the Hawkins County test because the Respondent was not created directly by the state but instead by private individuals as a nonprofit organization.5 In addition, rely- ing on the Respondent’s failure to establish that it is ad- ministered by individuals responsible to public officials or the general electorate, we agree with the judge’s conclu- sion that the Respondent does not satisfy the second prong of the Hawkins County test. Beyond the Respondent’s po- litical subdivision arguments, we also agree with the judge, for the reasons she states, that the Respondent is not exempt from the Board’s jurisdiction as a single employer with the City of Los Angeles. We further find, in agree- ment with the judge, that the Respondent has not presented any persuasive reasons for the Board to decline to assert jurisdiction over the Respondent on discretionary grounds.6 B. The judge recommended dismissal of the complaint on the basis that the General Counsel failed to establish that the Respondent impliedly threatened employees as alleged in the complaint. On exception, the General Counsel ar- gues that the Respondent is not entitled to judgment as a matter of law and that the judge erred in recommending dismissal of the complaint. We find merit in the General Counsel’s exceptions. At the hearing, prior to presenting its defense, the Re- spondent orally made a “motion to dismiss and/or for a directed verdict” on the entire complaint, arguing that the General Counsel had not met her burden to prove the com- plaint allegations. From the bench, the judge construed the Respondent’s motion as a motion for summary judg- ment, granted the motion, and recommended dismissal of the complaint. Following the hearing, the judge issued a written deci- sion in which she restated her findings and conclusions granting the Respondent’s motion for summary judgment. The judge found that Penn’s email was merely communi- cating 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 5 We thus find it unnecessary to rely on the judge’s finding that the Respondent was not created to be an administrative arm of the govern- ment. See, e.g., Hyde Leadership Charter School—Brooklyn, 364 NLRB 1137, 1142 fn. 15 (2016) (finding it unnecessary to decide whether entity was an administrative arm of government where Board found that entity was not directly created by the state). 6 The judge analyzed the Respondent’s jurisdictional arguments in the context of denying the Respondent’s prehearing motion to dismiss, determining that the evidence accompanying the Respondent’s motion, even if accepted, would not show that the Board lacked jurisdiction. cry to employees.” The judge further stated: “I cannot read Penn’s email and objectively conclude that his state- ments intended to coerce, restrain, or threaten anyone with unspecified reprisals by allegedly disparaging employees who took their work-related complaints outside of [the Re- spondent].” 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 the Respondent. Further, the judge found that the record demonstrates that no one was terminated, disciplined, or suffered any ad- verse consequences for complaining on the New York Times website about the vaccination event. Thus, the judge concluded that the Respondent did not violate Sec- tion 8(a)(1) as alleged and that the Respondent was enti- tled to judgment as a matter of law. We find merit in the General Counsel’s argument that the judge failed to apply the well-established standard for evaluating whether the Respondent’s statements violated Section 8(a)(1) as unlawful threats. As we recently ex- plained, 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 em- ployees in the exercise of their Section 7 rights. Intent is immaterial. The Board considers the totality of circum- stances in assessing the reasonable tendency of an am- biguous 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 inter- pretation of the statement. The Board therefore consid- ers the total context of the alleged unlawful conduct from the viewpoint of its impact on employees’ free ex- ercise of their rights under the Act. Lush Cosmetics, LLC, 372 NLRB No. 54, slip op. at 3 (2023) (quotation marks and citations omitted). 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 the Respondent’s per- ceived intent, the lack of evidence that any employees un- derstood Penn’s remarks as a threat, and the fact that no Then, in her decision, the judge found that the Board has jurisdiction over the Respondent, and we agree with the Respondent that the judge relied on her prior analysis in doing so. The Respondent does not except to the judge’s reliance on her prior analysis. Instead, its exceptions challenge only the substance of the analysis. Having found that the Respondent’s exceptions lack merit for the reasons set forth above, we adopt the judge’s jurisdictional finding. In light of the foregoing, the Respondent is precluded from challenging on remand the Board’s jurisdiction over the Respondent. COMMUNITY ORGANIZED RELIEF EFFORT 3 employees suffered adverse consequences related to the remarks. Therefore, we have decided to reverse the judge’s ruling granting the Respondent’s motion for summary judgment and to remand the case to the judge for further considera- tion in light of this decision. On remand, the judge shall reopen the hearing to allow the Respondent an opportunity to present evidence in support of its defenses to the Sec- tion 8(a)(1) complaint allegations and for the General Counsel to present rebuttal evidence. The judge shall also prepare a supplemental decision. ORDER IT IS ORDERED that this proceeding is remanded to Ad- ministrative Law Judge Lisa D. Ross for further appropri- ate action as set forth above. IT IS FURTHER ORDERED that the judge shall prepare and issue a supplemental decision setting forth credibility res- olutions, findings of fact, conclusions of law, and a rec- ommended Order, as appropriate on remand. Copies of the supplemental decision shall be served on all parties, after which the provisions of Section 102.46 of the Board’s Rules and Regulations shall be applicable. Dated, Washington, D.C. September 20, 2024 ______________________________________ Lauren McFerran, Chairman ________________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 1 GC Exh. 1(g). Abbreviations used in this decision are as follows: “Tr.” for the Transcript and “GC Exh.” for the General Counsel’s exhib- its. Yaneth Palencia, Esq., for the General Counsel. Mathew Rosengart, Charles Birenbaum, and Anthony Guzman, Esqs. (Greenberg Traurig LLP), for the Respondent. DECISION STATEMENT OF THE CASE LISA D. ROSS, Administrative Law Judge. On February 3, 2021, Daniel Rojas (Charging Party), an attorney at law who has no relation to the employer in this matter, filed an unfair labor practice (ULP) charge against Community Organized Relief Ef- fort (Respondent or CORE), a nonprofit organization. The charge was amended on April 28, 2021. On October 25, 2021, National Labor Relations Board’s (NLRB or Board) Regional Director for Region 31 issued the instant complaint and notice of hearing.1 The complaint alleged that Respondent violated Section 8(a)(1) of the National Labor Relations Act (NLRA or the Act) when, on or about January 29, 2021, Sean Penn (Penn), Re- spondent’s Co-Founder and Chairperson of the Board, emailed all employees and impliedly threatened them with: (1) unspeci- fied reprisals by disparaging those who took work related com- plaints to the public or third parties; and (2) discharge by inviting employees to quit rather than take their work related complaints to the public or third parties. At this point, I must detail the procedural history of this case in order to better understand the circumstances that arose at the hearing. Respondent filed its answer, an amended answer and its sec- ond amended answer denying all material allegations and setting forth multiple affirmative defenses to the complaint. Specifi- cally, Respondent averred, inter alia, that this case should be dis- missed because: (1) the Board lacked jurisdiction under Section 14(c) of the Act, (2) the Board should decline to assert jurisdic- tion since Respondent should be viewed as a political subdivi- sion due to a “substantial nexus” between it and state and local government partners, and/or that (3) the Charging Party lacks standing to sue in this matter because he is not an aggrieved in- dividual within the meaning of 29 U.S.C.§160(b). The hearing was initially scheduled to begin on June 7, 2022. However, at Respondent’s request, Region 31 rescheduled the hearing from June 7, 2022, to September 13, 2022.2 On August 18, 2022, I held a prehearing conference with the parties. During that conference, Respondent orally argued that this case should be dismissed based on some of the same proce- dural and merit-based grounds that it averred in its affirmative defenses to this complaint. Since oral dismissal motions are not recognized in ULP cases prior to a hearing, I instructed Respond- ent to file its written motion so its arguments could be properly ruled on. MOTION TO DISMISS On August 25, 2022, Respondent moved to dismiss this com- plaint, raising jurisdictional and lack of standing arguments as 2 I ruled that the September 13 hearing would be held in-person. See GC Exh. 1(q). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 well as arguments for dismissal on the merits of the complaint.3 On September 7, 2022, Charging Party opposed Respondent’s motion to dismiss.4 The General Counsel also opposed Respond- ent’s motion on September 8, 2022.5 There was some confusion whether I, as the trial judge, could rule on Respondent’s motion to dismiss prior to opening the record at trial. At that time, even with the hearing scheduled to begin on November 1, 2022, I be- lieved that I could rule on the motion pursuant to Section 102.35(a)(8) of the Board’s Rules and Regulations (Board Rules). However, the General Counsel argued, inter alia, that Respondent’s motion should have been filed with the Board pur- suant to Section 102.24 of the Board’s Rules. While Respondent’s motion to dismiss was pending, I in- formed counsel for the parties that, due to an emergency sched- uling conflict, another judge may be reassigned to hear this mat- ter. On October 21, 2022, Respondent complained to the Board’s Chief Administrative Law Judge Robert Giannasi and the Board’s Inspector General David Berry about this potential change in scheduling. Since investigating the issues raised in Re- spondent’s October 21 letter could have extended beyond the hearing date, this matter was postponed indefinitely off the No- vember 1, 2022 trial date. However, I remained the trial judge assigned to this case.6 On January 3, 2023, I, together with the parties, rescheduled the in-person hearing to Tuesday, March 28, 2023. With the case being rescheduled to March 28, 2023, that meant that Respondent’s motion to dismiss had been filed (and pending) for more than 28 days prior to the date of hearing. As such, pursuant to Section 102.24 of the Board’s Rules, Respond- ent’s motion was required to be submitted to, and ruled upon, by the Board. Accordingly, on February 8, 2023, I, via the Division of Judges, transferred Respondent’s Motion to Dismiss to the Board for decision.7 However, on February 10, 2023, Respondent withdrew its mo- tion to dismiss before the Board, which the Board accepted and withdrew on February 13, 2023.8 This action effectively mooted Respondent’s motion to dismiss on procedural and merit-based grounds. Approximately 1 month later, however, Respondent filed its Renewed Motion to Dismiss before me.9 RENEWED MOTION TO DISMISS Respondent’s renewed motion eliminated all of the merit- based grounds to dismiss the complaint. Instead, the motion sought to dismiss the complaint on procedural grounds only, ar- guing, inter alia, that Board should decline jurisdiction over this matter since Respondent should be considered a political 3 Also on August 25, 2022, the same date it moved to dismiss this complaint, Respondent moved to postpone the September 13 hearing date so that Mr. Penn, who was out of the country conducting Respond- ent’s business, could be available to appear in-person. GC Exh. 1(s). Respondent’s request was granted, and on August 29, 2022, the in-per- son hearing was rescheduled to commence on November 1, 2022. GC Exh.1(x). 4 GC Exh. 1(z). 5 GC Exh. 1(aa). 6 GC Exh. 1(dd) – (ff). 7 GC Exh. 1(ii). subdivision and/or a single employer with the City of Los Ange- les. Respondent also averred that Charging Party lacked standing to bring this case since he is not an aggrieved individual. On March 24, 2023, 4 days before the hearing date, Counsel for the General Counsel opposed Respondent’s renewed Motion to Dismiss. I informed counsel for the parties that I would rule on Respondent’s motion on the record at the hearing. On March 28, 2023, when I opened the hearing, I denied Re- spondent’s renewed procedural motion to dismiss in its en- tirety.10 Although counsel for the General Counsel argued against dismissal based on the merits of the case, I did not rule on those arguments because Respondent’s motion was proce- dural in nature, and as such, none of the General Counsel’s ar- guments about the merits of the complaint were before me at that time.11 After ruling on several other pre-trial motions on the record, this case proceeded to trial in Region 31. Counsel for the General Counsel presented only documentary evidence. No witnesses testified in either the General Counsel’s or Charging Party’s cases in chief. MOTION FOR DIRECTED VERDICT After the close of counsel for the General Counsel’s case, and after Charging Party waived his right to call any witnesses, Re- spondent moved for a directed verdict on the entire complaint, arguing that counsel failed to prove by the preponderance of the evidence that an 8(a)(1) violation occurred on any of the com- plaint allegations. Counsel for the General Counsel and Charg- ing Party verbally opposed said motion on the record. After reviewing the evidence and the parties’ arguments on the record, I analyzed Respondent’s motion as a motion for sum- mary judgment (since there was no witness testimony, counsel for the General Counsel relied solely on the documents in the record and neither party disputed any material fact at issue in the case). After reviewing the evidence and the parties’ arguments on the record, I granted a directed verdict/summary judgment, because counsel for the General Counsel failed to prove, by a preponderance of the evidence, that Mr. Penn impliedly threat- ened any employees with unspecified reprisals or with discharge for employees taking work related complaints to the public or third parties. This Decision memoralizes my on-the-record rul- ing.12 FINDINGS OF FACT13 I. JURISDICTION CORE has been a California, nonprofit organization, with a principal location in Los Angeles. Respondent is engaged in the 8 GC Exh. 1(jj) – (kk). 9 GC Exh. 1(ll). 10 See Vol 1 Tr. at 14–22. 11 Id. at 21-22. 12 I incorporate by reference my ruling from the record. See Vol 2 Tr. at 84-101. This Decision mirrors my ruling except I added language to this Decision to clarify meaning, delete unnecessary phrases and correct typographical errors in the transcript. 13 Specific citations to the transcript and exhibits are included where appropriate to aid review and are not necessarily exclusive or exhaustive. COMMUNITY ORGANIZED RELIEF EFFORT 5 business of saving lives and strengthening communities im- pacted by or vulnerable to crises, like helping communities re- build during the war in Ukraine and assisting communities sur- vive during and in the aftermath of the COVID-19 pandemic. It is undisputed that, during the calendar year of 2021, Re- spondent provided services valued in excess of $50,000 directly to customers outside of the state of California. Accordingly, it is undisputed, and I find that, Respondent has been an employer engaged in commerce within the meaning of Sections 2(2), (6) and (7) of the Act. It is also undisputed, and I find, that Co-Founder and Chair- person of the Board Penn and Co-Founder and Chief Executive Officer Ann Lee (Lee) have been agents of Respondent as de- fined in Section 2(13) of the Act. Lastly, it is undisputed that Mr. Rojas is a practicing attorney in Los Angeles, California. He is not nor has he ever been an employee of Respondent and he does not represent any former or current employees of Respondent. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Facts The parties stipulated to the following background facts: 1. In January 2021, the United States was in the midst of a once- in-a 100-year-pandemic, COVID-19 (the pandemic), that was sweeping across the country, including the City of Los Angeles. 2. As of January 29, 2021, Respondent employed approxi- mately 1900 employees. 3. As states and cities across the country increasingly utilized private health care providers for vaccine distribution, govern- ment agencies began directing the closure of many of the vaccine and testing sites to which CORE partnered. As a result, Respond- ent’s workforce downsized from 1900 to approximately 950 em- ployees. B. Specific Incidents of Alleged Unlawful Conduct The facts giving rise to the incidents of alleged unlawful con- duct are largely undisputed: 4. In or around January 2021, the City of Los Angeles’ Mayor Eric Garcetti (Garcetti or the Mayor) converted Dodger Stadium, which initially served as a site for testing Los Angeles’ residents for COVID-19, into a vaccination site so that residents of the City of Los Angeles could get vaccinated. 5. On/around January 28 and 29, 2021, Respondent was either invited or agreed to participate at Dodger's Stadium’s Vaccina- tion Day to assist the city and other local partners with its vac- cination efforts. 6. While it is unclear from the record how many CORE em- ployees attended/worked at Dodger Stadium during the Vacca- tion Day event, it is undisputed that some, but not all, CORE employees worked the Vaccination Day event on January 28 and 29. 7. On January 29, 2021, the New York Times (NYT) pub- lished an article about the Vaccination Day event. The article de- tailed what occurred during the event and included interviews with various individuals, participating organizations, and others 14 GC Exh. 2. 15 GC Exh. 3. that attended and/or worked the event.14 8. Following the NYT article, two anonoymous commenters posted their opinion about working at the Dodger Stadium Vac- cination Day event on the New York Times website.15 Although it is unclear whether the two posters were Respondent employ- ees, viewing all facts in a light most favorable to the General Counsel, I find that the posters were either employees of Re- spondent or Mr. Penn perceived them as employees of Respond- ent. 9. In any event, on January 28, 2021, one commenter posted the following: 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 tran- sition 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 work- ing these hours without the opportunity to take breaks - they are schedulers and are essential to the function of the site. With- out 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 vac- cines. 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.16 10. On January 29, 2021, a second commenter posted the fol- lowing: 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 iPacls. 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.17 11. Although there was some dispute regarding: (1) whether 16 GC Exh. 3, at 1. 17 GC Exh. 3, at 2. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 an actual OSHA violation occurred, (2) the type of food that workers were given for lunch, and (3) whether those specific de- tails are considered terms and conditions of employment, again, viewing the facts in a light most favorable to the General Coun- sel, I find that the anonoymous commenters were complaining about their terms and conditions of employment. 12. Following the online comments, it is undisputed that, on January 29, 2021, Mr. Penn either wrote or directed CEO Ann Lee to write an email to all employees as follows: 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 com- munities. You have gone above and beyond the vision of CORE leadership. As Chairman & Co-Founder of CORE, I've been awed by the evolution of our organization. It would be a lame conceit for any of us in upper management to claim pro- priety over the vision that could only have formed itself follow- ing the emergence of your talent, care, and sacrifice, The in- vention brought forward by so many of you. You deserve to embrace a unique pride, that throughout your lives, you can as- sociate with these historic times. I cannot express with words the unprecedented sense of pride that I have to be associated with you. That said, expressions with words mean little without actions clear and tangible. So, as I assess, and re-assess, my own re- sponsibility in management to all of you, and to all those we serve in the race against mutations and the fight against the cur- rent strains of Covid-19, trust that I awaken pre-dawn and pass out post-midnight every morning and every night, pulling at my hair and pounding pavement, not only to scrape every penny I can find to facilitate continuing and scaling our work, but also to consistently consider the human toll of that work on all of you. I have extraordinary partners in this mission, most significantly my co-founder and our CEO, Ann Lee. Ann and I know very clearly where we have succeeded and where we have failed daily and cumulatively. The snowballing chal- lenges of CORE's work are immeasurable, and while it takes no measure to recognize that mistakes have and will be made, I pledge to you that our focus on your safety, your well-being, and on our joint ability to continue the evolution of CORE's empathy and efficiency is a commitment we hold sacred. 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 valu- able, 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 es- sential 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 struc- ture of the work and workplace we provide demands an adapt- ability 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 in- herent 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 ran- dom 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 ini- tiated 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 inac- curacies about our vaccine effort at Dodger Stadium in a news report, were in themselves not only a propagation of deeper in- accuracies, but also indulged the personal opinions of those al- leged CORE staffers in a way that violates everything that keeps us whole. We are an organization built on partnerships. Extraordinary partnerships. Partnerships in California. Partner- ships 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 partner- ship is that which CORE has with the City of Los Angeles and its LAFD. This high impact partnership did not happen by ac- cident, 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 COMMUNITY ORGANIZED RELIEF EFFORT 7 will have contributed to is a lessening of CORE's impact in the fight against COVID-19. A fissure that could collapse a life- saving 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. I want to select one among the uninformed inaccuracies that was stated in those shameful entries. It was stated that the Mayor of Los Angeles "...more or less ordered an OSHA vio- lation." This allegedly related to excessive work hours for CORE staff. I like taking this one on. I like taking it on for two reasons. One, because over these last eleven months, I learned to quickly leave my cynicism towards political leadership at the door anytime a political leader acted in ways that earned my faith and my optimism. Theirs is not a job for the faint of heart. They get up every day to be smacked in the face by a tidal wave of bureaucracy and political push and pull. They voluntarily submit to hostile levels of scrutiny while leading inevitably trial-and-error initiatives that so rarely are acknowledged for their triumphs and so consistently are criticized when good in- tentions fall short. In my view, and much of it has been from a front row seat, Mayor Garcetti epitomizes both the humility and vision most valued as a partner with CORE. He has been a leader on every level. A leader and a listener. An encourager- in-chief. So, let me make this EXCESSIVELY CLEAR: With all due respect to the Mayor's official authorities and responsibilities, none give him authority to "order" or impose directives directly on CORE staff. Full stop. His official authority is exercised at his initiative through a chain of command, that in the case of Covid vaccination programs, he directs through the highly structured and extraordinarily well-led Los Angeles Fire De- partment, with whom we partner on site. Notwithstanding an array of speculations one may make related to advance plan- ning by advance planners from within the partnership as a whole, circumstances outside CORE's control and outside the Mayor's control can suddenly shift. As was the case in transi- tioning from testing to vaccination. When there is a quantifia- ble urgent need and an unquantifiable supply of vaccine, it should be of no surprise that we would have a day of reckoning where surge crowds and slim staffing merge. The un-noted shared triumph of our shared partnerships is that it jointly took us only one insane day to get squared away from those four- hour waits to the twenty-five-minute ones on the day that fol- lowed. So, no, the mayor DID NOT order excessive hours of CORE staff and volunteers. He gave a directive to the extraordinary men and women of Los Angeles Fire Department. An occasion they immediately rose to. Following chain of command, lead- ership from LA Fire came to CORE leadership. The responsi- bility for any additional work hours requested of CORE staff falls squarely at my feet, and not because I "ordered" it. But because we in CORE leadership asked it of you, our extraordi- nary staff and volunteers. And guess what? You rose up. You did. Not me. All of you. And I will admit something. It made me weep. Not with some stupid self-presumed sense of fatherly pride, but simply a human pride in experiencing that people like you exist. Contrary to what the aforementioned ill-equipped alleged CORE staffer's cyber comments claimed, I do believe Mayor Garcetti is a hero. I do believe that the Los Angeles Fire De- partment is chock-full of heroes. But what's unique about all of you is that you rose up from the ranks of common citizenship and built a citizen army into a heroic one. Please support each other in continuing this mission. You are the beginning of a once in a century generation. Calamity response is, at best, controlled chaos. But I want to emphasize the word control and return at last to the general fo- cus on partnership. We have all been given a gift. As precious a gift as we will ever be given. The utter human genius of those scientists who were able to choreograph control over this virus. A vaccine. A vaccine that we together with our partners admin- ister into the arms of our fellow human beings. We have a job to do, and I beg those who are unwilling to do it, to quit. The notionthat negativity is a proxy for insight is an understatement for the reckless narcissism and self-indulgence that played it- self out in the broad betrayal of all. In summary, here's what I believe we should focus on that per- haps may be more important than any comment that our al- ready stretched thin resources should be channeled to breakfast buffets (that no one working in a clothing store would expect from their employer). I want to focus on the aforementioned gift we received. For those who read this who have already been vaccinated, your gift's ribbon is tied. For those who have not, be they CORE or any of our partners, and all those in the general population in the United States of America, do not min- imize the gift in your hands of knowing that there is light at the end of the tunnel, because for so many millions upon millions of people in so many other countries, there has not even begun to be any evidence of hope that they will receive the vaccine all of us are so damn lucky to know we will. If we all focus our attention on the mission at hand, CORE will persevere. And within some gray area of time, between four months and two years, the population of this nation, all of us, our families and friends, will be protected from this horrible virus. Let's focus on saying thank you to science by continuing to support each other through thick and thin so that we may be an organization who can ultimately reach out its tentacles of experience and of- fer its dedicated staff to a world in waiting. l do not feel that l have served you well enough in this mission in making sure that l communicate regularly to all of you just how extraordinary you are. I hope that for me too, this is the beginning of a better day, and that l will be able to offer you your deserved acknowledgment from my end. To those l have overlooked, take this as my sincerest apology. l will try to look harder through the sea of masked faces to see the people behind them. No excuses. Only improvement. Let's all summon every bit of strength to be a sum that is as great as the parts you all so individually represent. My deepest gratitude and respect, Sean Penn DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 Chairman and Co-Founder of CORE18 13. Mr. Penn’s email was distributed to approximately 1900 personnel, the majority of whom were employees. It is Mr. Penn’s email (and the objective interpretation therein) that is the subject of this case. Analysis I. MOTION FOR DIRECTED VERDICT/SUMMARY JUDGMENT A. Legal Standard The Board does not necessarily have a mechanism similar to what the Federal Rules of Civil Procedure and the Federal Rules of Evidence calls a motion for a directed verdict. Although often times, a party, usually a Respondent, will file such a motion after the close of the General Counsel's case, a motion for a directed verdict does not technically exist in ULP hearings. However, this is a unique situation, in that the General Coun- sel has relied solely on documents, specifically General Counsel Exhibits 2, 3, and 4, as well as stipulations that the parties have agreed to, as her case in chief. Usually, when such a situation presents itself, it is more akin to a motion for a stipulated record with the Board. Such a motion occurs when the parties ask the judge to rule on the merits of the case based on the documents that are submitted.19 Yet, this procedural situation does lend itself to me ruling on Respondent's motion like it was a motion for summary judgment. Again, there is no testimony in the record. Neither the Charging Party nor Respondent presented any witness testimony. The par- ties are relying solely on the documents. There have been no ob- jections to the authenticity of the documents. All of the docu- ments have been received into evidence. Therefore, I am essen- tially evaluating this case on the documents which is akin to a motion for summary judgment. As such, I view Respondent's motion as a motion for a summary judgment after the close of the General Counsel's case. I have authority to rule on that mo- tion, pursuant to Section 102.24(a) of the Board's Rules. Under a motion for summary judgment standard, I must re- view the evidence and rule in favor of the moving party only if there are no genuine issues of the material fact at issue and that the moving, in this case, Respondent, is entitled to a judgment as a matter of law.20 It is not necessary for the party opposing sum- mary judgment to submit affidavits or other evidence that estab- lishes the factual issue.21 Rather, the Board, in its discretion, may deny the motion, where the motion itself fails to establish 18 GC Exh. 4 (emphasis, quotations and capitalization in original). 19 I agree with the General Counsel that this case should have been filed as a stipulated record, given that General Counsel did not present any testimony but relied solely on the documents as evidence. However, for such a motion to be granted, both parties must agree to waive a hear- ing. Since that did not happen, technically, I cannot consider Respond- ent's motion a motion for a stipulated record. 20 See Security Walls, LLC, 361 NLRB 348 (2014); Mercedes-Benz U.S. International Inc., 365 NLRB 662 (2017). 21 Sec. 102.24(b) of the Board's Rules state neither the opposition nor the response must be supported by affidavits or other documentary evi- dence showing that there is a genuine issue for hearing. 22 Leukemia and Lymphoma Society, 363 NLRB 1084 (2016). 23 Smithers Tire & Auto. Testing of Tex., 308 NLRB 72 (1992). the absence of a genuine issue, or where the opposing parties' pleadings, oppositions, and/or response indicate on its face that a genuine material issue exists.22 Accordingly, viewing the facts in a light most favorable to the General Counsel, the issue in this case basically boils down to whether Mr. Penn's January 29, 2021 email impliedly threatened employees with unspecified reprisals by disparaging those who took work-related complaints to the public or third parties, and whether Respondent, through Mr. Penn, impliedly threatened employees with discharge by inviting them to quit, rather than allowing them to take their work-related complaints to the public or to third parties, in violation of Section 8(a)(1) of the National Labor Relations Act. For the reasons set forth below, I do not find that Respondent violated the Act as alleged. I will take each issue in turn. II. RESPONDENT DID NOT VIOLATE THE ACT WHEN PENN ALLEGEDLY IMPLIEDLY THREATENED EMPLOYEES WITH UNSPECIFIED REPRISALS IF EMPLOYEES TOOK THEIR WORK- RELATED COMPLAINTS TO THE PUBLIC OR TO THIRD PARTIES A. Legal Standard In assessing whether a remark constitutes a threat, the appro- priate test is “whether the remark can reasonably be interpreted by the employee as a threat.”23 The actual intent of the speaker or the effect on the listener is immaterial.24 The “threat in ques- tion need not be explicit if the language used by the employer or his representative can reasonably be construed as threatening.”25 Rather, the Board considers the totality of the circumstances in assessing whether the reasonable tendency of an ambiguous statement is a veiled threat to coerce.26 Accordingly, the basic test to find an 8(a)(1) violation is whether, under the totality of the circumstances, the employer’s conduct may reasonably be said to restrain, coerce, or interfere with an employee’s rights un- der Section 7 of the Act.27 As you might imagine, determining whether an ambiguous statement is an illegal threat versus an opinion about possible consequences has proven difficult. It must be assessed in a fact- specific manner, taking into account the employer's right to free- dom of speech under Section 8(c) of the Act, balanced against the employee’s right to be free from coercive threats under Sec- tion 7. In balancing these competing interests, the Board has held that threats of job loss or loss of hours in retaliation for engaging in union activities violate Section 8(a)(1) of the Act.28 Now, in order to make the determination of whether an 24 Smithers Tire, 308 NLRB 72 (1992); see also Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir. 1981) (inquiry under Sec. 8(a)(1) is an objective one which examines whether the employer's actions would tend to coerce a reasonable employee). 25 NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970). 26 KSM Industries, 336 NLRB 133, 133 (2001). 27 American Freightways Co., 124 NLRB 146 (1959) (basic test is whether the employer’s conduct may reasonably be said to restrain, co- erce, or interfere with an employee’s rights under Section 7 of the Act). 28 United/Bender Exposition Service, 293 NLRB 728, 732 (1989); Middletown Hospital Association, 282 NLRB 541 (1986); Air Express International, 281 NLRB 932 (1986); Fiber Glass Systems, 278 NLRB 1255 (1986); Foundation of California State University, 255 NLRB 202 (1981); Louis Gallet, Inc., 247 NLRB 63 at fn. 1 (1980). COMMUNITY ORGANIZED RELIEF EFFORT 9 ambiguous statement can reasonably be construed as a threat, the trier of fact must undertake a fact-based analysis. I conducted such an analysis in the case of Cintas Corp., 372 NLRB No. 34 (December 16, 2022), which is illustrative of the analysis I must undertake in this case.29 In Cintas, I had to decide whether Cintas violated Section 8(a)(1) when the Charging Party's manager allegedly threatened him with the loss of promotional opportunities when his manager said that Charging Party did not have the right brand for leader- ship. Mr. Heidenreich, the Charging Party, a sales representative for Cintas, engaged in prior, protected concerted activity when he complained with several of his coworkers about his manager’s management style. Shortly thereafter, Heidenreich applied for a promotion to become a supervisor over the sales representatives in his department. I found that Heidenreich’s manager was aware of Heidenreich’s prior protected, concerted activity. In any event, Heidenreich was interviewed for the position but his man- ager selected another individual for the supervisor position. When Heidenreich was informed by his manager that he was not selected, he told his manager that he knew he would not be selected. In response, the manager stated the reason why Hei- denreich was not promoted was because he “didn’t have the right brand for leadership.” In analyzing whether the manager’s statement, “didn’t have the right brand for leadership,” would objectively be viewed as an unlawful threat, I viewed, and the Board required me, to view the totality of the circumstances surrounding the statement. What that meant was not only did I have to look at the statement at issue, but also the circumstances surrounding the context in which the statement was made. In essence, I had to view all of the facts and factors that led up to the manager making such a statement; not simply interpret the words within the statement itself. The manager credibly testified at trial that, when she said Hei- denreich “didn’t have the right brand for leadership,” since Mr. Heidenreich had had interpersonal communication deficits, which had been previously documented, she meant that Hei- denreich lacked the requisite interpersonal management and communication skills to become an effective supervisor. As such, viewing the statement together with the surrounding total- ity of the circumstances, I found that the statement alleged was not an unlawful threat; rather, that Heidenreich did not promote because of his lack of interpersonal communication and manage- ment skills. The Board did not overturn my decision on this is- sue.30 Accordingly, in determining whether an ambiguous statement is an unlawful threat due to a person’s prior protected concerted activity, I cannot cherry pick and emphasize the problematic statements standing alone, rather I must evaluate the statement(s) in context with the totality of the circumstances at issue. B. Discussion Viewing Mr. Penn's email, in light of the above standard, con- sidering all of the surrounding facts and the context of what gave 29 372 NLRB No. 34 (December 16, 2022). 30 Id. rise to the email, I conclude that Respondent is entitled to judg- ment as a matter of law, because in viewing the email in its to- tality and the surrounding circumstances, I do not find that Mr. Penn’s email could be reasonably construed as a veiled threat. Rather, in looking at the email in its totality, I find that the tenor of Mr. Penn's email is essentially: to rally his employees to focus on the larger mission of CORE, which was to vaccinate as many Los Angeleans as possible. To wit, Mr. Penn’s email ex- plained that the mission of CORE at the Vaccination Day event was unlike any other situation. There would be difficulties in vaccinating thousands of residents. There would be disorganiza- tion since the Vaccination Day event operation had never been conducted before. There would be folk who were displeased with the operation procedures and make inaccurate statements about what occurred at Dodger’s Stadium. As such, there is no other objective reading that can be made of this email, other than that Mr. Penn was trying to correct the record, with respect to the online complaints, to correct the inac- curacies that had been conveyed about the Vaccination Day event, and to rally his employees not to give up on the mission of CORE during the event at Dodger’s Stadium. He also con- veyed that, despite the difficulties that may have occurred during the event, employees must keep in mind the general, overarching mission of what CORE was doing at the Dodger’s Stadium event: vaccinating thousands of residents from a deadly virus that was sweeping across Los Angeles and the United States. Counsel for the General Counsel prefers that I focus solely on the alleged problematic language in Penn’s email to the exclu- sion of everything else. For example, Penn’s statement on page 2, fourth paragraph of General Counsel Exhibit 4, reads: 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, a fissure that could collapse a life-saving enterprise. And to whom—whoever authored these, under- stand 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.31 Taking Penn’s statement out of context and/or emphasizing the above language to the exclusion of all of the other statements in Penn’s email, one could conclude that Penn’s statement is an un- lawful threat. However, I cannot read Penn’s statement out of the context from the remainder of the email. Rather, the plain reading of Mr. Penn’s statement together with the rest of Penn’s email demonstrates that he is not im- pliedly threatening employees with unspecified reprisals or dis- paraging or restraining employees from complaining about their terms or conditions of employment. Rather, what Penn is, in es- sence, saying to employees is that, in the context of the Vaccina- tion Day event at Dodger’s Stadium, do not get caught up in the minutia of difficult circumstances that CORE is engaged in in 31 GC Exh. 4, at 2. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 vaccinating citizens; but focus on CORE’s mission, which is the fight against COVID. Indeed, in other areas of Penn’s email, he praised employees, was appreciative of their efforts during the Vaccination Day event and was complimentary of their contin- ued fight against COVID during the pandemic’s challenging times. Although Penn was frustrated with the inaccuracies of the posters’ online comments, and may have inartfully worded those frustrations, Penn’s email was pure speech, i.e, conveying his opinion about/response to disparaging comments about the Dodger’s Stadium event rather than conveying unlawful threats of reprisals in an effort to prevent employees from complaining about their terms and conditions of employment. II. RESPONDENT DID NOT VIOLATE THE ACT WHEN PENN ALLEGEDLY IMPLIEDLY THREATENED EMPLOYEES WITH DISCHARGE BY INVITING EMPLOYEES TO QUIT RATHER THAN TAKE THEIR WORK-RELATED COMPLAINTS TO THE PUBLIC OR THIRD PARTIES A. Discussion Similarly, counsel for the General Counsel urges me to high- light and read another portion of Penn’s email standing alone (as she did in her argument opposing summary judgment), without considering the broader context of the email or the factual cir- cumstances that prompted the email to begin with. Specifically, on page 2 of General Counsel Exhibit 4, first par- agraph, Mr. Penn states: And any among us who do not find themselves built in this way for the mission at hand, any of us who don't recognize our in- herent 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. Quitting for CORE, quitting for your colleagues who won't quit, quit for your fellow human beings who deeply rec- ognize 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.32 Do I believe Mr. Penn’s statement, standing alone, was inartfully worded? Yes. Surely, if one were to focus on that comment alone, without context and given the timing of the comment to the online complaint, one could conclude that Penn’s statement is an unlawful threat. However, again, that is not the purview that I must evaluate Penn’s statement. Rather, I must review the statement in context of the entirety 32 GC Exh. 4, at 2. 33 The fact that the General Counsel called no former/current employ- ees to testify that they perceived Penn’s email as a veiled threat does not, in itself, defeat the General Counsel’s case. But, the absence of witness testimony also must be taken into consideration. This is particularly rel- evant when a third party, with no connection to Respondent and who lacks knowledge of the relevant context, files a ULP charge against Re- spondent. 34 Since I granted Respondent’s Motion for Directed Verdict/Sum- mary Judgment, counsel for the General Counsel took a special appeal of my ruling (without awaiting my Decision in this matter) arguing that, given my ruling on the record, I used my own subjective interpretation of Mr. Penn’s email and his intent. Nothing could be further from the truth. Rather, I simply read Penn’s email in the context of the of the email and the totality of the circumstances. In so doing, and based on the plain wording of this document, I cannot find that Mr. Penn’s statement impliedly threatened employees to quit because of their protected, concerted activity. Rather, it is just the opposite. In reading Penn’s statement in context with the bulk of the email, I find that Penn’s email is a rallying cry for employees to focus on the larger mission of CORE, and to understand the dif- ficulties that come with implementing that mission, and if em- ployees cannot handle that mission for whatever reason, then they should determine whether CORE’s mission is right for them. Again, the recond is devoid of evidence that any employee perceived Mr. Penn’s email statements as a veiled threat to ter- minate employees for taking work related complaints outside of CORE.33 In fact, the record demonstrates that no one was termi- nated, disciplined or suffered any adverse consequences for com- plaining on the NYT website about the Vaccination Day event. Clearly, when read in context, Mr. Penn’s email was pure speech; it sought to address some inaccuracies made by posters in two online posts and to encourage employees to remember the fight against COVID, not the minutia of the goings on at the Vac- cination Day event. Even under a summary judgment standard, given all reasonable inferences and viewing the facts in the light most favorable to the General Counsel, I still cannot conclude that under the preponderance of the evidence, it is more likely than not that Mr. Penn’s email statements can reasonably be construed as a veiled threat designed to prevent employees from taking their work-related complaints to the public or to terminate employees if they do. Rather, the reading of this email, in my view, was just Mr. Penn’s rallying cry to employees.34 Again, was Mr. Penn’s statement inartfully worded? Abso- lutely, if one focuses solely on the statement itself without con- sidering the remainder of the email and the totality of the circum- stances at hand. However, I cannot interpret ambiguous, in- artfully worded statements in a vacuum, because context mat- ters.35 Rather, as I did in Cintas, I am required to look at ambiguous statements in totality, in context, and consider whether the state- ment can objectively be interpreted as an unlawful threat. Based upon the foregoing standard, given all the facts and under the totality of the circumstances that gave rise to Penn’s email, I find that Penn’s email allegedly inviting employees to quit rather than take their work-related complaints to the public or to third parties circumstances surrounding what CORE employees were required to do at the Vaccination Day event and the posters’ comments therein. I have no idea of Mr. Penn’s subjective intent, because neither the General Counsel nor Respondent called Mr. Penn to testify. Even if Penn testi- fied, his intent is irrelevant. See Smithers Tire, 308 NLRB 72 (1992) (the actual intent of the speaker is immaterial). 35 See e.g., FDRLST Media, LLC v. NLRB, 35 F.4th 108, 122 (Third Circuit found no veiled threat when publisher of media company posted a tweet saying, “first one of you [referring to employees] tries to unionize I swear I’ll send you back to the salt mines,” because an alleged threat- ening statement cannot be viewed in a vacuum, rather must be based upon the whole course of conduct revealed by the record reviewing other relevant, contextual evidence). COMMUNITY ORGANIZED RELIEF EFFORT 11 cannot reasonably be interpreted as a veiled threat violative of the Act. Therefore, I conclude that judgment, as a matter of law, should go to Respondent. I do not find that the General Counsel, based upon the evidence before me, has met her burden by the prepon- derance of the evidence. Reviewing the evidence in its totality and in context, I cannot read Penn’s email and objectively con- clude that his statements intended to coerce, restrain, or threaten anyone with unspecified reprisals by allegedly disparaging em- ployees who took their work-related complaints outside of CORE. I also cannot conclude, based upon the totality of the circumstances, that Mr. Penn's email impliedly threatened em- ployees with discharge, by inviting employees to quit working for Respondent rather than take their work-related complaints to the public or third parties. I am persuaded by the evidence before me that Respondent did not violate Section 8(a)(1) of the Act as alleged. Accord- ingly, for the foregoing reasons, I grant Respondent's motion for a directed verdict, construed here as a motion for summary judg- ment, and recommend that this complaint be dismissed in its en- tirety. Dated, Washington, D.C. April 17, 2023