The raging controversy over the kneeling by NFL players
during the playing of the national anthem took yet another turn recently, this
time with labor law in the spotlight. Specifically, there has been publicity
and press over the possibility that the National Labor Relations Act (NLRA)
protects protesting players against being fired or other reprisals for their
actions. Perhaps most notably, the New York Times published an article tree days ago with the
headline "N.F.L. Players May Have an Ally in Their Protests: Labor Law." But just like a Hail Mary pass by a desperate football team as time runs out, I think this has low odds of success.
The classic applications of the NLRA pertain to situations
involving labor unions, including workers trying to form a union, unions and
companies bargaining contracts, and strikes by unionized workers. But as I have
blogged about in at least one previous entry,
the NLRA’s protections are not limited to situations involving formal union
actions. Rather, the NLRA more fundamentally protects collective efforts by
workers to improve their work situations. This is the relevance of the NLRA in
this situation because even though the NFL players are unionized, their protest actions
during the national anthem are not in the context of formal union activities
like forming a union or bargaining a contract.
In this context, the New York Times article correctly indicated
that “To be protected under federal labor law, an employee’s action must be
conducted in concert with co-workers, it must address an issue of relevance to
their job, and it must be carried out using appropriate means.” Given the
widespread nature of the protests, Test #1 (conducted with co-workers) is satisfied.
But unlike the experts quoted in the article, I’m skeptical that the remaining
two tests are satisfied.
Test #2: addressing a job-relevant issue. The NLRA seeks to
protect workers who join together to improve their wages, hours, and terms and
conditions of employment. This has been interpreted in broad terms, including
prohibiting employers from preventing employees from sharing their salary information
with each other. Political activities are included in these protections, but
only when those activities are sufficiently connected to employment conditions.
To date, the NFL player protests have been about social justice, police
brutality, and inequality. Obviously these are important issues, and I applaud
the players’ stands, but these are not issues that are connected to their
employment. [With that said, if the tenor of the protests shifts, for example,
to expressing solidarity with a player who was reprimanded for protesting, then
that solidarity action would fit within the scope of the NLRA. Unfortunately, the
implication is that the players would have greater protections under labor law if
their actions were more selfish (I guess the NLRA is very American after all), but based on Test #3 this still might not be enough to protect them in this case.]
Test #3: conducted in an appropriate way. It’s important to
remember that the NLRA’s protections are not unlimited. Rather, the law’s key
challenge is balancing workers’ and employers’ rights and interests (hence the title
of my textbook, Labor Relations: Striking a Balance). So actions that harm an employer’s business are not necessarily
protected. In classic doctrine, workers can be prohibited from talking about
unions or wearing buttons if this disrupts the employer’s business by
undermining efficiency and discipline, by affecting customers, or by harming
its public image. Presumably the NFL could argue that the protests are harming
its image and business. The burden of proof would be on the NFL so it’s not
clear which way a legal ruling would go, but my point is that it’s certainly
not clear that labor law is on the players’ side.
Adding to this, insubordination is not protected by the
NLRA. Suppose the NFL tried enforcing a policy of standing for the national
anthem. We could then see a continued protest as a protest against this work-related rule rather than as a political protest. Under Test #2, this is now more germane to their employment. That's the good news, in terms of this labor law analysis. But the bad news for the players is that refusing to stand for the national anthem in protest to a requirement that they do so would likely amount to unprotected insubordination. This would be a situation where players refuse to obey this one policy while complying with other
policies (e.g., playing the game!)--that is, the players could be seen as selectively refusing to
follow managerial directives that they dislike while complying with other
directives. Labor law protects workers' solidarity actions, but it doesn't give them the right to pick and choose which managerial directives to follow and which to ignore. So this would likely be a case of (unprotected) insubordination
than of (protected) collective protest.
In closing, it’s great that labor law is being
discussed in this context. Labor law applies to many more situations than is commonly
believed, so anything that raises awareness is a good thing. Also, I don’t
intend this as a criticism of the players who are protesting. I applaud their
desire to raise difficult questions and seek social justice. But for better or
worse, I think the extent to which labor law might provide protections in this
particular case has been overstated in the media. Labor law can assist workers in many situations, but this might not be one of them.
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