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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Learning from Film Festivals for “The Organizer”

with Beulah Labostrie at the New Orleans showing

New York City   Reasonable people might ask, “What does a community and labor organizer know about documentary films?” The answer would be darned little! I say this after having watched several develop over the last seven years or so as various filmmakers with different ideas and themes tried to get their arms around ACORN and organizing. Some abandoned the project, others combined, and now several have come to some fruition.

With Dan Russell and Mike Gallagher next to film poster at Woodstock

Over recent days with family, friends, members, other organizers and activists, and, importantly, members of the public, I have attended two film festivals in New Orleans and Woodstock, New York where “The Organizer,” a documentary by Nick Taylor from Toronto and Joey Carey from New York was showing. The film is a long look at ACORN and its arc from 1970 through today. I’m a bit too close to it to offer a comprehensive review or critique at this point, but as an organizer, I can offer some reactions from what others have said, and the questions and comments many have made after viewing the film.

People have almost universally been wildly enthusiastic and excited after the showings. They find it inspiring and motivating. That’s fascinating to me. Part of it lies in the fact that the film despite some “dark” passages uses archival and contemporary footage of actions which give force to the passion, resilience, and conviction of the members and leadership. Most of it lies, perhaps not surprisingly, in the classic “eye of the beholder.”

People are grabbing for the light. Most of the questions and responses were really not about the film at all, but tended to be more searching. What could be done now? How do we best organize and respond to the contemporary political crisis? Where can I go, and what can I do to help? This basket of questions were very moving and personal, and often accompanied by some sharing of their own personal situation and their need to act even with limited time and energy. Another bunch of questions I would characterize as looking for a way to understand the larger picture. Is there anything that can effectively counter rapacious capitalism today? What do we make of the impact of Bernie Sanders now? How can we merge the issues domestically and internationally, as ACORN is trying to do now, and is it possible?

All of the comments and questions intersected at the junction of organization and social movement. In the age of Trump, as we near a year since the last election, the frustration seemed palpable, as did people’s need to do something. People were clearly stirring the fire to find the embers of the resistance that moved them after the election. The fire in their guts is still burning, even where the flames are less visible.

I answered all of the questions asked, but my organizing critique, which I do know something about, is that I did not come prepared to offer them the answers they were hungry to hear, which is what they could do now and how to do it. I won’t make that mistake again. I may not be able to objectively evaluate the film, but I definitely know an organizing tool when I see and hear it.

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