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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Jones Threats are Failing to Stampede Cowboys

Photo by Justin K. Aller/Getty Images

New Orleans   The fallout on the NLRB charge filed by Local 100 United Labor Unions over the threats he has made to attempt to chill workplace protests, continues to attract attention nationally and, increasingly, support.

The charge forced owner Jerry Jones to meet with the players yesterday, and by all reports there was no happiness in Mudsville. Players avoided the media and for the most part would not discuss the meeting with Jones. As Dallas Fox4 reported, “Things seemed tense when they were asked about the meeting with Jones.” Stars, Dak Prescott, Dez Bryant, and Ezekiel Elliot, seem to have deliberately made themselves scare.

Dallas Cowboys player representative tried to strike a middle ground, indicating there are undoubtedly tense conversations being held to try to pull Jones off his illegal limb and back to some ground that he might be able to share with the players, most of whom are not used to being bullied for any reason, on or off the field. Quoted by Fox,

Kicker Dan Bailey is the team’s union player representative. He spoke cautiously about the issue and tried to navigate through it. “I don’t think you can ever bring a group of people together and collectively agree. I think there’s always going to be people that have different opinions, different beliefs,” he said. “I think the main focus is to just establish a baseline where you can come together and agree on something in principle. It doesn’t mean that your individual views are right or wrong. Like I said, when you come in this door, we’re working towards something as a team. I think that’s the main focus.”

More interestingly, as Fox4 called around they found solid support for Local 100’s charge from employment lawyers on the rule issue, and reportedly from other lawyers arguing the players might have constitutional grounds for a First Amendment suit as well. Here’s what the attorney offered,

Employment and labor lawyer Amy Davis, who is not involved in the complaint, says the labor union may have a case, citing the NFL’s current game manual. “What the manual says is they should stand not that a requirement,” Davis said. “And what Jerry Jones is doing is saying, ‘No, it is a requirement.’” Some legal experts also believe the NFL could face a first amendment lawsuit for punishing players who take a knee if the stadium they play in was funded with taxpayer money, which AT&T Stadium was.

Stay tuned, this is not an issue that is going away.

But, let’s be frank, that’s the high side of real news and measured response.

Turns out Facebook is also a way for haters to rage. A couple of messages came in full of Obama rage and the “n” word. Whoever says the issue of these protests is not racial is not paying attention for sure. As disturbing were the number of people who wrote that this was Jones’ team and his field and these were his players, and they had to do whatever he says. Whoa, Nellie, not in this country. Al Sharpton was quoted in a USA Today report including the charge that Jones seemed to think he was still “running the plantation.” A couple of union members, one from the IBEW, weren’t happy, because they felt the anthem trumped the more fundamental rights of the players. Brothers, there’s a law, won partially by your unions, so let’s follow it.

It wasn’t all bad. One woman asked how she could make a donation to Local 100 for standing up on this issue. That’s unique. I need to get back to her.

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