Local 100 Puts Cowboys Owner Jones on Notice While Withdrawing NLRB Charge

New Orleans  Local 100 United Labor Unions notified NLRB Region 16 that it was withdrawing the charge filed over two weeks ago over threats made by Dallas Cowboy’s owner, Jerry Jones, to “bench” his players of they protested during the national anthem.

In a press release describing its action, Local 100 said the following about the situation:

…withdrawing its NLRB charges at this time, Local 100 did so because the National Football League after meeting with the owners and players has ruled that there will be no discipline of players for utilizing their “platform” and protesting the societal situation of racial injustice and police brutality that is impacting their working conditions and lives. Furthermore, the NFL committed to continued dialogue about these situations and taking positive, though unnamed steps, to address them in the larger community. NLRB rules allow the union to refile these charges at any time.

Since the filing of Local 100’s charges, Jones has not repeated the threats against the players that were the subject of the charges. United Labor Unions’ Chief Organizer, Wade Rathke said, “If Jerry Jones threatens or disciplines any players of the Dallas Cowboys despite the clear position of the NFL and others, we will immediately refile these charges with the NLRB and pursue them to their conclusion. We are hopeful that Jones has learned that there are legal limits that guide his treatment of his workforce and rights that cannot be abridged, regardless of his own personal opinion. We will continue to monitor this closely. We hope a lesson was learned, and that we had some small impact on this debate, and the actions of the NFL doing the right thing.”

Has Jones really learned his lesson? We hope so, but we doubt it. We believe in fact that it is more likely that a combination of our action emboldening his own lawyers to tell him he was across the line and to shut up, the NFL overlords telling him his position was untenable and he needed to back up, and the anger of his own players at his bullying all forced him in retreat. As cbssports.com reported among many others, “Cowboys players were reportedly angered by Jones’ public hard-line stance, and the team had a meeting with Jones about it during the bye week.” There were no public comments, but privately it was well-known that players told Jones he was out of line.

The final straw convincing the union that it was best to withdraw for now and leave the matter hanging became clear after Jones’ vacillating in reaction to defensive tackle David Irving raising his fist after anthem in the last game. Jones tried to walk the line saying as long as it was not during the anthem, no problem. Jones again was exposed as “all talk, no cattle.” Or, as The Nation’s David Zirin has written, “… the fact Jerry Jones now has to smile his way through it is just another sign of how much ground the owners lost and how much of their own humanity the players have reclaimed.”

And, besides reclaiming their “humanity,” the players have also learned the power of their labor rights both under the NLRA and their own contract, which the NFLPA shrewdly enforced in the meeting with the owners. As Local 100’s statement said as well, we were

…also glad that … [our] action in stepping in to file charges against Jones and Cowboys for their treatment of their players ignited a national debate about the rights and entitlements the players had as workers under the National Labor Relations Act. Lawyers, professors, and others have joined the debate in newspapers, blogs, and websites on the question with the preponderance of them supporting Local 100’s standing to file and the fact that the union drew attention to the role of the NLRA in protecting workers’ rights in these situations. The union is hoping that its action will prompt other workers caught in difficult situations in their jobs, too often unrepresented, to understand the law and take advantage of its provisions to protection themselves and exercise their rights.

This clearly isn’t over. The protests, though diminished, continue. And so does the debate, and that’s a good thing for the players, the cause, and workers and their communities everywhere.

Professor Tim Wu, free speech, computer expert, and occasionally columnist for the New York Times threw another brick at the window, this time at the White House, which was pulling the strings on the Cowboys’ Jones, saying...

…the White House needs to be held accountable when it tries to use private parties to circumvent First Amendment protections. When it encourages others to punish its critics — as when it demanded that the N.F.L., on pain of tax penalties, censor players — it is wielding state power to punish disfavored speech. There is precedent for such abuses to be challenged in court.

The fat lady won’t sing on this one until victory is complete. There will be many test questions in the future for Jerry Jones and his ilk on the lessons they are being forced to learn now.

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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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