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Labor Law Meets the NFL Anthem Protests

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Former Associate
Of Counsel
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Recently, Jerry Jones – the outspoken owner of the Dallas Cowboys – announced an official policy that any of his players who kneeled during the national anthem would be benched. On October 11, United Labor Unions Local 100, based in Texas, filed an unfair labor practice charge with National Labor Relations Board (NRLB) asserting that any such rule violated the players’ Section 7 rights under the National Labor Relations Act.  Section 7 gives employees the right to engage in concerted activities on behalf of other employees for the mutual aid and protection of the terms and conditions of their employment. See 29 U.S.C. § 157.

At the outset, it’s notable that Local 100, to our knowledge, has no connection whatsoever with the NFL or Cowboys players. However, the NLRB has repeatedly held that there is no standing requirement to file ULP charges with the agency.  So, the union’s lack of connection is not fatal to the charge.

On the other hand, the substance of these protests is what is likely fatal to this charge. The NLRA protects employees who act on behalf of one another to further their interests, that is – the terms and conditions of their employment.  It is difficult to see how employees engaged in political protests, in this case directed at unequal treatment of minorities generally in the United States, serves the interests of these players as employees.  The NLRB’s General Counsel previously took the position that, to evaluate whether an employer’s actions are prohibited, the Board must examine if there is a “direct nexus between the subject of the protests and a specifically identified employment concern.”  Thus, it is highly unlikely that any such nexus exists and, unless it does, Mr. Jones’ policy would not appear to constitute an unfair labor practice.

However, on October 27, the union withdrew its charge against the Cowboys citing the NFL’s decision not to punish any players.

See here for greater information regarding the NLRB General Counsel Guidelines on employees’ rights to engage in political advocacy and the protection of those activities under NLRB law.