Players, NFLPA, and Local 100 ULU All Seem Winners After Owners Meeting

Demonstrators rally outside the location of the annual NFL owners meeting in New York City, NY, U.S. October 17, 2017. REUTERS/Shannon Stapleton

New York City   It’s never over until it’s over, but for at least one meeting, the bully-boy owners and the National Football League have been forced to back away from their threats and ignore the even bigger bullying and Twitter threats of President Trump as well.

Reports from the NFL owners’ meeting in New York indicate that almost a dozen owners were present at the meeting physically along with the NFL Players’ Association chief and about a dozen players. There was supposedly a dialogue on the issues of racial discrimination. Supposedly, there will be some initiatives taken by the league to support efforts at alleviation racial discrimination. Among the players were some who had been part of protests.

Importantly, despite earlier statements by some owners, like Jerry Jones of the Dallas Cowboys, there was no discussion of any rule changes for the anthem. In fact there were commitments that there would be no fines, penalties, or discipline for any players continuing to protest throughout the season.

Before the meeting former San Francisco 49ers quarterback, Colin Kapernick, whose initial actions last year triggered these on-going protests over racial discrimination and police brutality, filed a grievance accusing all of the owners and teams throughout the league of “collusion” in their continuing refusal to hire him despite his record last season. The grievance goes to an arbitrator and, if successful, could trigger triple damages. Since his salary was $15 million, if awarded back pay because of the league’s blackballing, he could collect up to $45 million.

All of this seems to be pretty much a hands-down victory for the players, their union, and our own union, Local 100 United Labor Unions, who filed a charge with the NLRB Region 16 in Fort Worth over the disciplinary threats of Dallas Cowboys owner Jones. Not to be a wet blanket in the celebration, but this is likely to be a celebration for a battle won, rather than the end of the war. The owners had been caught red-handed in violation of labor law, as pointed out by Local 100, but also according to other noted academic observers in violation of basic free speech protections of the First Amendment of the Constitution as well as the Civil Rights Act. They were also going to be in violation of their own labor agreement with the NFLPA which blocks unilateral changes or in fact any rule changes once training camp ends and the season begins.

The owners and the league though are still worried about the continued harassment from President Trump, though the 49ers owner publicly indicated that they just had to ignore all of that. The impact of fan reaction potentially accelerating the recent attendance decline and television ratings slide is likely something that will command their attention more than the President since it hits their pocket books directly. Is this now a “charm offensive,” as the owners try to win back their own players first and try for a wink-and-nod at stepping up against racial injustice in hoping to exchange the public protests seen by the fans for private discussion and concessions brokered by the union? Given that they seem to be willing to invite Kapernick to future meetings, and he seems open to attending, I would almost bet on it.

Some measure of the current victory though is a report that Jerry Jones when confronted by Black Lives Matter protests in the lobby of the New York meeting hotel, listened, and kept his mouth shut. For Local 100’s part, that is a huge victory in itself and, depending on how the weekend games play out, could be sufficient for us to withdraw out charge at the labor board for now.

We’ll have to wait and see, but in the meantime, as organizers everywhere would say, “a win is a win.”

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Riding to the Rescue of the Cowboys and Others

New York City   Other Sunday and despite bullying by owners in Dallas and Miami and of course President Trump’s endless tweets, NFL teams like the Green Bay Packers continued to lock arms, some San Francisco 49ers knelt during the anthem, three Miami Dolphins stayed off the field during the song, and the New Orleans Saints knelt before the anthem. A soccer team in Berlin, Germany even knelt in solidarity to protest racial discrimination.

Meanwhile support continues to grow for Local 100 United Labor Union’s charge and intervention. This time from a highly respected quarter, Sharon Block, the director of the Labor and Worklife Program at Harvard University Law School writing a piece in www.onlabor.org called, “Standing or Kneeling: Who Can File a Charge Under the NLRAwhere she defends our “standing” and sees us as part of the cavalry coming to the rescue.

In addition to many POTUS tweets, the controversy over NFL players’ national anthem protest has also generated a number of interesting labor law questions….  A new issue arose, however, in a curious exchange in the Bloomberg Daily Labor Report about the charge filed with the National Labor Relations Board by United Labor Unions Local 100 against the Dallas Cowboys.  The charge alleges that Cowboys owner Jerry Jones violated the National Labor Relations Act by threatening to bench any players who failed to stand during the national anthem.

You don’t have to be much a football fan to notice that the United Labor Unions Local 100, a small union known for representing service workers in the South, is unlikely to be the certified collective bargaining representative of the Dallas Cowboys players.  In fact, all NFL players are represented by the National Football League Players Association.  Noting that the NFLPA seems to have nothing to do with the charge and that the United Labor Unions Local 100 has nothing to do with the NFLPA, both a management lawyer, Tom Gies of Crowell & Moring, and a labor law professor, Paul Secunda, questioned the standing of United Labor Unions Local 100 to file the charge.

The exchange is interesting because, unlike most other judicial or administrative proceedings, the National Labor Relations Act does not include a standing requirement.  The Board’s regulations simply state that “any person may file a charge alleging that any person has engaged in . . . an unfair labor practice.”  (emphasis added.)  While it may seem strange that a stranger to a dispute has a right to initiate Board proceedings …it makes sense if you think about the bigger picture of how the Board operates.

To a large extent, the charge filing process is simply a means of giving the NLRB General Counsel notice that a violation of rights may have occurred and should be investigated.  Such notice is important because the General Counsel is precluded from going out and looking for violations on his or her own initiative.  In the Obama Administration, we took great pride in adopting “strategic enforcement” initiatives across the Department of Labor’s enforcement agencies, like the Wage and Hour Division and the Occupational Safety and Health Administration, pursuant to which we used vast amounts of data and community contacts to anticipate where violations might be, looking especially in industries and workplaces where vulnerable workers might be hesitant to come forward themselves to file charges.  We called these cases “directed investigations” and they were as successful in uncovering violations as cases initiated on the basis of employee complaints.

There is nothing strategic about how the NLRB General Counsel is allowed to initiate investigations. In fact, even if the General Counsel witnesses a flagrant violation of the Act, absent a pending charge, the General Counsel is unable to do anything.  In light of the constraints on getting cases into the NLRA’s process, it makes sense to have a broad definition of who may be the General Counsel’s eyes and ears in pointing out where problems under the Act may exist.  Unions traditionally have played the role of strategically directing the Board’s attention to potential violations.  In this era of declining union density, however, it may be important for other organizations to think about how they can play a strategic agenda setting role on behalf of workers who don’t have a union, but whose right to engage in concerted activity under the Act may be being violated.  Clearly, the Dallas Cowboys are not unrepresented workers hiding in the shadows but the curious circumstance of a stranger coming to their rescue has raised another interesting issue in the on-going NFL anthem protests.

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Please enjoy David Ramirez’s Stone Age. Thanks to KABF.

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