Employment Law Daily ULP charge challenges Dallas Cowboys’ threat to bench players who kneel during national anthem
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Friday, October 13, 2017

ULP charge challenges Dallas Cowboys’ threat to bench players who kneel during national anthem

By Pamela Wolf, J.D.

The growing movement among football players to kneel during the national anthem in protest against police brutality and racial injustice, later perhaps fueled by President Trump, who has urged that these “sons of b*****s” should be fired, has reached a new level in the battle over free speech rights and respect for the U.S. flag.

On October 10, United Labor Unions, Local 100, filed an unfair labor practice charge against the Dallas Cowboys and the National Football League. The move was prompted by public threats made by Cowboys owner Jerry Jones that players who kneel during the National Anthem would be benched.

“The employer, evidenced by repeated public statements, is attempting to threaten, coerce, and intimidate all Dallas Cowboys players on the roster in order to prevent them from exercising concerted activity protected under the Act by saying he will fire any players involved in such concerted activity,” according to the charge.

Why now? As Wade Rathke, chief organizer for Local 100, pointed out in a blog posting, these protests have been tolerated by team owners and coaches for more than a year, with some owners and coaches signaling support for the players. So why now are owners “attacking the players, and buckling to President Trump’s tweets,” as Rathke puts it?

“Don’t for a minute believe that this isn’t racial on Trump’s part and another dog whistle to his hater-base,” said Rathke. “70% of the NFL rosters are African-American. There’s a reason he’s hosting almost all-white hockey teams at the White House, while NBA and NFL professionals with a growing racial sensitivity are standing up to Trump.”

Is the charge viable? The unusual circumstances of the players in this situation raise the question whether the National Labor Relations Act actually provides protection for this type of “protest.” Attorney Patrick Scully, a Member in the Labor & Employment Department of Sherman & Howard LLC in Denver, told Employment Law Daily that the charge “theoretically states a violation of Section 8(a)(1) of the National Labor Relations Act, insofar as several players ‘taking a knee’ is certainly a form of concerted protest.”

“The challenge for the Union filing this charge is to connect the subject matter of this protest to players’ terms and conditions of employment,” Scully continued, suggesting that Local 100 “may claim that players are protesting against the Team’s requirement that they participate in and/or stand for the anthem.”

Scully called Local 100 “an odd entity” to be filing the charge but clarified that, technically, it does not have to be the representative of the employees to file such a charge. “Ultimately, however, players will have to provide evidence to the NLRB to sustain the allegations,” he stressed.

Does the CBA apply? The Sherman & Howard attorney also said that the charge could be further complicated “by any provision in the NFL’s collective bargaining agreement with the NFLPA that addresses concerted protests during the term of the agreement.”

Next steps. Scully said that generally, this type of charge will be investigated and processed within a month or two, with the NLRB’s Ft. Worth Regional Director ultimately making a determination of whether the allegations have “merit.” If he concludes the allegations do have merit, an administrative complaint will be issued and the case may proceed to trial before an administrative law judge, Scully noted.

“Absent discipline, these types of cases are frequently settled quietly with a notice posting,” Scully observed.

A little ironic … Pointing to what he called a “strange footnote, given the origin of the anthem protest,” Scully pointed out that the EEOC recently sued Local 100 for race discrimination.

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