Football player Colin Kaepernick’s epic protest for Black civil rights has finally become an explicit labor relations dispute. As hundreds of players spent this season taking a knee during the national anthem in solidarity with Black Lives Matter and in defiance of Donald Trump, Kaepernick – who inspired the actions – was not there. The quarterback’s contract with the 49ers came to an end in between seasons. Although he is ranked as better than half of all players starting in that position this season, no team has signed him.
In response to this obvious retaliation by team owners for his political activity, Kaepernick has filed a grievance under the contract’s prohibition against collusion, and the players union has offered words of support.
The grievance, and the collective protest that Kaepernick’s symbolic action sparked, suggest two areas where unions should be doing more work to push beyond our traditional issues of wages and benefits. We should be fighting more for our right to free speech and greatly expanding the scope of issues that we bring to the bargaining table.
Consider the case of the Twin Cities-area Jimmy Johns sandwich chain, which fired workers who protested their employer’s sick leave policy. Actually, “policy” is a tad generous. Their boss’s rule was: come in to work – sick! – unless you can convince a coworker to cover your shift. When workers circulated leaflets to customers in protest, Jimmy Johns fired the organizers. Obama’s NLRB recognized this as retaliation for protected concerted activity and ordered Jimmy Johns to rehire the activists.
This summer, however, a federal circuit judge ordered the workers to remain fired because he did not approve of their speech. The workers, he ruled, were being disloyal when they aired Jimmy Johns’ dirty secrets in public. (Unsurprisingly, the judge had little to say about the fast food chain’s need to reciprocate this loyalty by letting its workers take a day off when they’re sick!)
Incredibly, the judge was citing a half-century-old Supreme Court precedent. In that case, called Jefferson Standard, the Court majority thundered, “There is no more elemental cause for discharge of an employee than disloyalty to his employer.” But how can workers call for improvements at work and disagree with their boss’ priorities without committing acts of “disloyalty?” This is one of the many laws that ties union organizing campaigns in knots.
It’s possible to consider Kaepernick’s protest “disloyal” – not to the nation or the armed services, as the president and right-wingers whined, but to the reputation of the National Football League for highlighting that the game has devolved into a spectacle of mostly black and brown men breaking their bodies and brains for a largely white audience of consumers who are so easily offended by a silent and respectful request to respect the basic human dignity of people of color.
It’s a little-known fact that only very recently that the NFL began making players come out on to the field during the national anthem, part of a lucrative advertising contract with the Department of Defense. That makes Kaepernick’s taking a knee a protest over a change in working conditions, albeit not one that his union has a legal right to force the league to bargain over.
The obligation to bargain in good faith has been drastically narrowed by the Supreme Court to apply only to “mandatory” subjects of bargaining like wages, hours and some working conditions. “Permissive” subjects carry no legal obligation to bargain, and the Court has privileged “managerial decision, which lie at the core of entrepreneurial control” in this manner.
But the “voice at work” that people want include a say in those core decisions. Teachers form unions to gain a say in advanced placement offerings, student discipline and extracurricular activities. Nurses organize to gain a voice in staffing ratios, treatment regimens, patient billing and discharge.
Some unions are pushing well beyond the legal scope of bargaining. In a project called Bargaining for the Common Good, key unions in some cities align their contract expirations and bargaining demands with community demands advanced by partner organizations. Through protest actions, they try to drag the actual power brokers – banks, multinational corporations and large political donors – to the table along with the direct employers.
One common demand by teachers unions has been to stop banks from foreclosing on family homes during the school year. Teachers in St. Paul, MN, in tight partnership with community organizations fighting foreclosure, forced their district to divest from banks that continue to do so. They continue to press for other demands, including removing police from schools and expanding recess and the arts. This union was also in the streets in support of Black Lives Matter after police shot and killed one of their own members, Philando Castille.
Much as Colin Kaepernick didn’t show up for work merely focused on how to win his team’s game, these unions go to the table concerned about the health of their communities. To fight back against the relentless corporate agenda, workers cannot surrender their free speech in the workplace nor limit their demands for a better world to simple shop floor issues.
[This article originally appeared in the January 2018 issue of The Unionist.]