Unionist #1 by UCS Cornell ILR

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Features

ISSUE 1

JANUARY 2017

UNIONIST

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Welcome DANIA RAJENDRA

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The Most Famous Union Grievance in the Country KIM KELLY

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5 Ways Kaepernick’s Case Looks Like McCarthyism SPENCER SUNSHINE

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Kaepernick grievance accuses NFL of collusion — and caving to Trump KATHY WILKES

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#MeToo, #TakeAKnee, #TimesUp: Impediments to and Opportunities for Solidarity and Member Engagement ANA POLANCO

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Grievances That Divide BILL BARRY

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Beyond Bread & Butter: Labor Disputes for Social Justice SHAUN RICHMAN

WELCOME

BY DANIA RAJENDRA

an introduction to the most famous union grievance in america When union brother Colin Kaepernick (NFLPA, AFL-CIO) filed his grievance in October, we at team UCS cheered. Here was a union member using the power of collective action and his collective bargaining agreement to challenge widespread racism and bosses’ abuse of power. We had been watching as #TakeAKnee took off, and were gratified to see friends, colleagues and some UCS contributors post selfies of their solidarity. Then, at the suggestion of our Cornell Worker Institute colleague Melanie Willingham-Jaggers, we included in our flagship print publication, Steward Update, a reflection by union sister and writer Kim Kelly (Writers Guild of America, East, AFL-CIO). New fangled times, as we call them around here, require both old-fashioned solidarity and some new experiments. So, we present our inaugural issue of Unionist, a new, online-only publication on a specific topic. Our first: the meaning and importance of the biggest union grievance to hit the news cycle since the invention of Facebook. Six writers – all unionists* -- present their own perspectives on the historical resonance, practical lessons, and possible implications of Kaepernick’s grievance, including Kim Kelly’s original piece, which kicked us off. All opinions are their own, but we’re all for oldfashioned solidarity. We hope you’ll let us know what you think at our Facebook page. In solidarity and justice, Dania Rajendra, for all of the team UCS

*unionist: n. a supporter of unions or unionism

The Most Famous Union Grievance in the Country

Kim Kelly is a writer, editor, and a member and leader of Writers Guild of American, East.

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Whether you’re a dedicated football fan or completely oblivious to sports, chances are that you’re familiar with the name Colin Kaepernick. Kaepernick—”Kaep” to his fans—was wellknown in the football world since joining the San Francisco 49ers in 2012 as a quarterback, but has been making national headlines since 2016, when he began kneeling during the national anthem to protest police brutality and racial inequality in America. His actions inflamed the NFL establishment and the conservative media, even as other players from across the league and other athletes followed his lead. Fans were divided—while some posted photos of themselves burning Kaepernick merchandise, others were vocal in their support (and helped make Kaep’s jersey the highest-selling in the league). The controversy has followed him into 2017, where his free agent status has raised eyebrows. Outside of his activist work, Kaepernick’s NFL record is impressive. Other, less qualified quarterbacks were offered jobs by major teams while Kaep wasn’t. It looked increasingly as if Kaepernick was being punished aligning with the Black Lives Matter movement, for speaking out against the killings of unarmed black people by policeand, ultimately, for making NFL fans and leadership alike uncomfortable about facing the realities of race and inequality in the US. On October 15, the NFL Players’ Association (NFLPA) filed a collusion grievance against the National Football League on Kaepernick’s behalf, alleging that the NFL’s team owners colluded to shut him out of the league for his political stance and activism. As union members—I’m one, too, (my union is the Writer’s Guild of America, East, and I serve on our union’s Council)—we need to be paying close attention to what happens next. Kaep has elevated the humble workplace grievance into the national spotlight and kept the media buzzing about its progress, as well as its implications, for other professional athletes who may seek to express their political views on the field. Not every union worker has the luxury of fame and fortune to back us up, but we do have contracts. Our contracts give us the right to accuse a boss of malfeasance and file a grievance without fear of reprisal, just like the NFLPA contract and mechanism that gave Kaepernick the freedom to pursue his. With Kaep’s grievance in the limelight, everyone can see a power of union membership that’s usually not visible. The Major League Baseball Players Association (MLPA) set a precedent in professional sports for filing and winning collusion grievances back in 1985-87, but similar attempts have failed due to lack of evidence. Now, though, it’s already been reported that NFL Commissioner Roger Goodell and several NFL owners—including Jerry Jones of the Dallas Cowboys, Robert Kraft of the New England Patriots and Bob McNair of the Houston Texans — will be deposed and asked to turn over cellphone records and emails related to

OPINION

BY KIM KELLY

Kaepernick’s case. That simply wouldn’t be possible without the contract, and without the grievance procedure. We stewards have been given a golden opportunity to communicate that to our shops. Instead of quietly working out his grievance in private arbitration, Kaep went public, showing off this tool to combat harassment and rectify a hostile work environment. Kaepernick has a powerful ally in his union, NFLPA, which has negotiated collective bargaining contracts for NFL players since 1968The results of the Kaepernick collusion grievance will surely have an effect on bargaining when the current contract runs out in 2020 Kaep has a long road ahead of him, but he’s already shown grit and wisdom by making his grievance public. He’s made a habit of leading by example, and now, has set an important precedent; even if his grievance is unsuccessful, he’s shown other players that the union will have their backs even in the face of public pressure. That’s a lesson every union steward can apply. As more and more players across the league—and members across unions and industries—choose to exercise their right to protest and speak out against injustice, it is not at all far-fetched to think that some of us may end up in the same circumstances as Kaep— and now, everyone can see that not only is there hope, there’s a way to fight back.

Kim Kelly Kim Kelly is a writer, editor, and political organizer based in Brooklyn. Her writing on culture and politics has appeared in the Guardian, Al Jazeera, Teen Vogue, and the New Republic, and she currently serves on the Writers Guild of America, EAST (AFL-CIO) council. Follow her on Twitter @grimkim

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Five Ways looks like

Perspective from Spencer Sunshine, Brooklyn-bas freelance writer whose work has appeared in Truth Colorlines, and The Forward.

s Kaepernickâ&#x20AC;&#x2122;s Case e McCarthyism

sed hout,

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Colin Kaepernick’s act of “taking the knee” while the national anthem was played before NFL games has been one of the most high-profile protests against racial discrimination in the mainstream in many years. And it has been polarizing, largely on racial lines, and has come at a personal cost to him. Despite being a free agent since the end of 2016 with a solid ranking as a quarterback, he was not signed in 2017. In response, Kaepernick has filed a grievance, accusing the team owners of colluding to insure that he cannot play in the league. It is not clear that his lawyers will be able to find the proof he will need to win, despite what looks like an obvious act to isolate him from the league. But whether he wins or loses, how Kaepernick is being treated calls to mind the ugly history of 1950s McCarthyism, when left-wing activists became the targets of campaigns against them, as well as how Civil Rights movement activists were also targeted. Like Kaepernick, people lost their livelihoods for standing up for equality. The anti-Communist crusades we now call McCarthyism, after then-Senator Joseph McCarthy, were driven by conspiracy theories about secret Communist plots to undermine the country. Often descending into hysteria and false accusations, this campaign ran mainly from the late 1940s to the early 1960s, and was promoted in different parts of U.S. society. The government’s hand in stoking these

flames is well known, from Senator McCarthy to the House Un-American Activities Committee (HUAC) and FBI Director J. Edgar Hoover. The Taft-Hartley Act—which severely limits the abilities of unions to strike and allows Right-toWork laws—was passed in 1950 as the campaign was underway, and it requires union leaders to swear they are not Communists.

1. Accused of being “manipulated by leftists” In addition to the government, a number of civic organizations, including the American Legion, joined in McCarthyism. There even became a kind of cottage industry of publications, which named suspected Communists in Hollywood and the entertainment industry. Those named were then often blacklisted by movie producers and studios, unable to work.

2. Accused of being “unpatriotic” Hollywood was a special focus of attention, although teachers and others with government jobs were especially vulnerable. McCarthyism gained so much traction that industries and professional organizations internalized the witch hunt and expelled real or suspected

OPINION

BY SPENCER SUNSHINE

Communists. This included a number of unions, universities, and progressive activist organizations. The NAACP purged itself, as did the ACLU—who went so far as to expel founding member and legendary union organizer Elizabeth Gurley Flynn. Hundreds of people were imprisoned, and thousands lost their jobs. Others lost access to public housing, passports, unemployment benefits, and social security; and some were stripped of their citizenship and deported. The leftwing movement as a whole was blunted in the United States, and only recovered in the late 1960s.

whites against movements for social equality. Oakland Raiders running back Marshawn Lynch went on Conan O’Brien’s show, and said this about the vicious attacks against Kaepernick: “If you’re really not racist, you won’t see what he’s doing as a threat to America—but just addressing a problem that we have.”

3. a Popular Campaign Civil Rights groups which were active against Jim Crow segregation in the South became targets of a similar campaign. The NAACP became the main target. The state of Alabama attempted to ban the organization, and a number of states governments attempted to force the organization to turn over their membership lists. Once known to the public, members would be harassed, fired, or assassinated. Civil rights scholar Clarence Taylor, author of Reds at the Blackboard: Communism, Civil Rights, and the New York City Teachers Union, told Steward Update that the common denominator between the attacks on Communists and Civil Rights activists in the 1950s and the blacklisting of Kaepernick today, is “white backlash”—a reaction by conservative

“Some people argue that all employees must be defended against any attempts to damage their employment status because of their political beliefs” Taylor also pointed out five ways in which the events of the past are similar to what has happened to Kaepernick. First, he is being accused of being “manipulated by leftists,” just as the NAACP and Hollywood were accused of being manipulated by Communists. Second, Kaepernick’s “taking the knee” during the anthem is said to be unpatriotic—just as Communists and civil rights activists accused of—even though he specifically knelt (as opposed to sitting, which he had originally done) to make sure that his protest was not seen as being disrespectful to the military, in particular. Third, there is a popular campaign against him, just as there was during McCarthyism, which is backed by

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a campaign by private groups. Recently we saw a slew of restaurants refusing to show NFL games as long as players were protesting during the anthem.

4. Government support Fourth, this campaign has the support of the government; while this was more widespread in the past, Donald Trump has gone out of his way to attack Kaepernick, going as far as to tell NFL owners to “get that son of a bitch off the field right now.” Fifth, just as how the McCarthyist climate of fear got industries to fire their own employees, the NFL owners are internalizing this fear and refusing to refusing to sign Kaepernick to a contract—or so we will see, if Kaepernick proves his case. Taylor said that the “it’s essentially the same argument they are making” against Kaepernick as they were against alleged Communists and Civil Rights activists of the past: that they are “attacking and undermining America.”

Differences In Advocating Equality And Genocide Some people argue that all employees must be defended against any attempts to damage their employment status because of their political beliefs; and that the attack on Kaepernick is the same as community-

based pressure campaigns by antiracist activists to get neo-Nazis fired from their jobs. This is a false equivalence, because Kaepernick’s call for equality cannot be treated the same as a Nazis’ call for genocide.

5. Bosses; Cooperation Societies should have an outside of what is acceptable; even our very permissive society does not allow unlimited free speech. It is illegal to directly threaten to harm someone, or to shout “Fire!” in a crowded theater when there is no threat. Accepting Kaepernick’s protest does mean we should defend the right of conservative players to express their opinions on the field—something which players like Tim Tebow already do. The First Amendment is very important because it stops the government from suppressing political speech; this is supposed to have the effect of making the government treat different political factions the same. But in many countries, especially in Western European countries, speech which calls for genocide and ethnic cleansing, or which demonizes minorities, is not allowed. You can be jailed for Holocaust denial in Germany, for example. And yet these countries still have a vibrant political debate across the spectrum and a free political system. This shows that, despite right-wing propaganda, a slightly more restrictive

OPINION

BY SPENCER SUNSHINE

attitude toward hate speech does not by necessity lead to the suppression of union organizing or suppress a vibrant political culture where many different viewpoints are expressed.

anthem into focus during the widely viewed Sunday night and Monday night games.

John Ramondetta, aka Johnny Monoxide, was one of the planned speakers at the fascist rally in Charlottesville, Virginia in August 2017, which ended with the murder of antiracist activist. He lost his job in the Bay Area as a electrician; a flyer passed out at his worksite said, “No brother of ours!” It also contained quotes from him attacking Jews, Black people, Native Americans, and women—whom he didn’t believe belonged in the trades. If a union member is working to get their union brothers and sisters expelled or killed because of their identity, this is no longer a question of tolerating political differences. We should not grant equal status to those asking for equality, with those who promote inequality and genocide.

Already Politicized

The push back against Kaepernick is not an attempt to keep “politics out of the game,” but rather an attempt to keep conservative views in the game while attacking expressions of anti-racism and other progressive politics. Kaepernick is being attacked by Donald Trump, and now some NFL owners, for being a progressive advocate of equality—just as suspected Communists and civil rights activists were. Keeping Kaepernick in the game also means keeping alive the space to express ideas of equality and solidarity in public. And these are the ideas that the unions are built on, and that unions should defend. Spencer Sunshine is a Brooklyn-based freelance writer whose work has appeared in Truthout, Colorlines, and The Forward. Follow him on Twitter @transform6789.

The NFL is already a politicized event, where conservative views pervade the game, including military displays and flagwaving patriotism. In 2009, the NFL began requiring teams to be on the field during the pregame national anthem. In previous years, teams would be in the locker room during the anthem of games broadcast during prime-time television hours. The end of that practice brought the pregame

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Kaepernick grievance accuses NFL of collusion â&#x20AC;&#x201D; and caving to Trump Perspective from Kathy Wilkes, a member of the National Writers Union, UAW Local 1981, AFL-CIO.

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Former San Francisco 49ers quarterback Colin “Kap” Kaepernick is unemployed in his profession and believes the National Football League (NFL) and affiliated team owners have conspired to keep it that way. Since March when he became a free agent, he has remained persona non grata with the singular reputation of sparking the controversy over NFL players silently protesting racial injustice during the National Anthem. Frozen out of the league, Kaepernick is now pursuing a high-profile grievance charging the NFL and team owners with violating Article 17, “Anti-Collusion,” of the 2011-2020 collective bargaining agreement (CBA) with the NFL Players Association (NFLPA). Whether it concerns hiring or negotiating a player’s contract, the CBA says: No Club, its employees or agents shall enter into any agreement, express or implied, with the NFL or any other Club, its employees or agents to restrict or limit individual Club decision-making... The grievance, however, claims that’s exactly what happened: Respondents NFL and NFL Team Owners have colluded to deprive Mr. Kaepernick of employment rights in retaliation for Mr. Kaepernick’s

leadership and advocacy for equality and social justice and his bringing awareness to peculiar institutions still undermining racial equality in the United States. Filed by Los Angeles attorney Mark Garagos, the grievance took the NFLPA by surprise. A union spokesman contacted for this article said that beyond a press release issued in October, “There’s not too much we can offer since [Kaepernick] is using independent legal counsel rather than the NFLPA’s legal counsel, and we support his right to do so.” A December 8 “primer” of the case by the New York Times highlights the somewhat complex steps involved in prosecuting this particular grievance. Discovery is in the works, the Times reports, and current wisdom is that Kaepernick has a formidable challenge ahead: [P]roving collusion will be difficult, legal experts say, because teams have many reasons for signing one quarterback over another, including his age, his salary, his temperament, how he fits into an offensive system and other available quarterbacks. The case has the feel of a disciplinary dispute—Kap is out of work after taking a stand—but it’s not. In discipline, the burden is on the employer to demonstrate just cause for a termination by proving that (1) the worker breached a policy that was reasonable, known and consistently

OPINION

BY KATHY WILKES

applied; and (2) discipline was reasonable and proportional.

Kap first sat out the Anthem on August 26, 2016. The following day the NFL and the 49ers issued separate statements about the incident, and NFLPA executive director DeMaurice Smith did an in-depth interview with Dave Zirin, sports editor of The Nation.

Instead, Kap has a classic contract case. The burden is on him to show that the employer violated the CBA. Proof of collusion among and between owners and the NFL would also expose how they did an end run around discipline rules and multiple other protections afforded him as a union member. For example, Article 42, Section 2(a) requires team owners to “publish and make available to all players” a complete list of conduct rules when preseason training begins. There was never a rule against protesting. Punishing a player for doing it would violate the CBA. Kap’s free agent status, however, left him vulnerable. There’s no requirement that any team hire him. Consequently the grievance contrasts his fitness and qualifications with the teams’ “unusual and bizarre behavior” toward him after President Donald Trump repeatedly pressured owners to fire protesters. NFL and team owners, the grievance charges, “retaliated against Mr. Kaepernick in response to coercion and calculated coordination from the Executive Branch of the United States government.” The grievance is peppered with references to First Amendment rights of speech and expression, which have been at the core of league and union statements since

“Players are encouraged but not required to stand during the playing of the National Anthem,” the NFL said, echoing existing policy in the NFL game operations manual. The Niners emphasized that “respecting such American principles as freedom of religion and freedom of expression, we recognize the right of an individual to choose to participate, or not, in our celebration of the national anthem.”

“There is never going to be a day where this union is

going to sit back idly and

allow anybody to trample our players’ rights”

Smith’s nuanced interview responses generally supported freedom of expression and unequivocally backed Kap. “There is never going to be a day where this union is going to sit back idly and allow anybody to trample our players’ rights,” he said. More than a year later the president very publicly turned up the pressure on the

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NFL with a scathing attack on protesting players. “Wouldn’t you love,” he said at a September 22 political rally, “to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now, out, he’s fired. He’s fired!’” The NFL and the union responded immediately in defense of the players and free speech. A national debate raged on for weeks as Trump continued to denounce the protests. He even called on football fans to boycott games. One team owner—the Cowboys’ Jerry Jones— threatened to bench protesting players after consulting with Trump. On October 9, the NFLPA issued a statement on players’ constitutional rights. Two days later, the league and the union issued a joint statement that there was no change in policy about protest. On October 17, a much publicized meeting of the NFL and NFLPA resulted in an agreement “to review and discuss plans to utilize our platform to promote equality and effectuate positive change.” The policy that players should stand during the Anthem but are not required to remained intact. The president’s ongoing criticisms of the NFL are especially noteworthy in light of his defense of so-called “alt right” groups—including white nationalists and neo-Nazis—responsible for the violent protest in Charlottesville, Virginia, that ended with one death and multiple injuries

of innocent bystanders. His statement of support for “some very fine people” among the alt right earned praise from various leaders of the movement, including Richard Spencer who has been the subject of protest over his speeches at college campuses in Florida and Michigan. “Really proud of him,” Spencer wrote of the president in a text message. “He bucked the narrative of Alt-Right violence, and made a statement that is fair and down to earth.” Conversely, Trump has persisted in condemning a league that is 70 percent African American, only a handful of whom have chosen to engage in peaceful, nonviolent and silent protest during the Anthem. They take knee or lock arms in solidarity or raise a fist. For this, Trump demands their termination in opposition to the CBA, federal ethics law and the First Amendment. Constitutional law expert Lawrence Tribe has observed that Trump “appears to have violated or at least attempted to violate 18 USC sec 227(a)(2).” The code forms the basis of an ethics complaint from an antiTrump group charging the President with trying to “influence or threaten to influence a private employment decision.” Meanwhile, lawyers and others have populated the web with opinions that NFL players do not have First Amendment rights to protest during the Anthem.

OPINION

BY KATHY WILKES

Their argument goes something like this: There are no free speech rights in a workplace, and the First Amendment prohibits suppression of free speech by government, not employers.

“anti-collusion” rules at least three times.

Such analyses, however, overlook two essential facts: (1) The NFL and the NFLPA have repeatedly affirmed players’ First Amendment rights via the processes of collective bargaining; and (2) so far, the only person who has relentlessly tried to suppress them is the President of the United States. The protection of players’ rights is a manifestation of the power of their union contract, which places the union on equal footing with the employer. Whatever occurs in the workplace may be subject to collective bargaining. This was evident as the NFL and NLPA grappled with the protest controversy. They understood that union workers are not “at will” employees like their nonunion counterparts and consequently can’t be ordered or fired on a whim without recourse.

There’s no question that professional football players, like other high-paid celebrities, are in a unique position compared to average, workaday union members. But consider their alternatives without union protection when the external force exerted on them comes from none other than the leader of the free world. It’s not hard to see, then, that with a union contract in place, it is indeed a whole other ballgame. Kathy Wilkes is an award-winning labor writer and editor; a former union organizer, co-founder, officer, negotiator and communications director; and a member of the National Writers Union, UAW Local 1981, AFL-CIO.

Even as an unemployed free agent, Kap, too, is protected. In accordance with CBA Article 17, his grievance will be heard and decided by a neutral arbitrator jointly selected by the NFL and the NFLPA. If he wins, the arbitrator could award compensatory damages, noncompensatory damages as much as three times the amount of compensatory damages, and fines of $5 million on each team found to have previously violated

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#MeToo, #TakeaKnee, #TimesUp: Impediments to and Opportunities for Solidarity and Membership Engagement

Perspective from Ana Polanco, is a people and culture expert committed to changing the way we think, talk and collaborate around inclusive leadership and organizational change

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In my work interviewing union leaders and workers, many shared stories of one or multiple forms of discrimination, sexual harassment and racism. My interviewees told me such patterns were not only present in their workplaces, in some cases they were normalized and rampant. While I wasn’t surprised that construction workers had to bind their breasts to minimize sexual harassment from their male coworkers or that African American men were often spit on and called the “n” word by their union brothers or sisters, the sheer volume of those stories from a small group of leaders was both overwhelming and heartbreaking. These stories also included union leaders sexually harassing their staff, of white leaders icing people of color out of leadership roles in union ranks. The silence around gender discrimination and racism is deep; the fallout spills over and touches every part of our lives. Many union leaders, organizers, and members, myself included, have sometimes stood by silently, condoned or felt completely paralyzed in the face of these situations. The widespread nature of these issues can generate a sense of shame or helplessness – it sometimes prevents us from speaking up or standing up even in this pivotal moment. But it is only by looking at our own behavior that we can begin to end the silence and begin fixing these deeply embedded cultural patterns.

Why Labor? It’s reasonable that a unionist may wonder, so why should we, the labor movement, even engage these issues? After all, the union movement has many other problems, including membership in rapidly decline and a Supreme Court case (Janus v AFSCME) that could undermine a huge portion of the union movement overnight. The answer is simple – we need a unified labor movement to win. The barriers to unity make this simple, not easy. If we can’t address the issues that make workers feel unsafe, that jeopardize their well-being and prevent them from working under safe conditions, then we lack credibility when we ask them to organize on behalf of a movement that only recognizes one part of their identity – that of worker. After leaders told me the stories workers were facing around sexual harassment, I asked if they thought their unions or employers would be willing to engage in new forms of prevention training and education for their own staff and local unions. While one or two leaders felt they could move it forward, most union leaders, despite the prevalence of these issues, felt completely powerless, hesitant to raise the issue. The reasons varied based on -- past failed initiatives, rocking

OPINION

BY ANA POLANCO

internal union culture or that addressing sexual harassment and discrimination would get in the way of negotiating the union contract or exposing elected leaders.

hypothetical worker, in the face of sexual harassment by a union leader during an organizing drive, might keep quiet because winning a raise is more important than addressing the unwanted behavior in the union. We know this is true because it also plays out in union organizing. The more workers feel confident about their power and voice the more likely they are to take on the employer. To do this, they have to feel seen and heard by the union. Many women leaders who join a union have told stories of overcoming domestic violence at home after going through an organizing drive.

Underneath all these conversations was power, rank and privilege. As a culture expert I know that leaders who intentionally, purposefully think about their own power and rank are less likely to notice the discrimination and sexual harassment in the culture of their workplace or union and more likely to condone a culture that discounts women and people of color. While those leaders and members with less power, real or perceived, tend to be shy to address these issues for fear that they may lose access to any power and privilege they have.

The answer is simplewe need a unified labor movement to win. The barriers to unity make this simple but not easy. The more “isms” you face, the further your perception is to that center of power. So a low-wage, African American, woman worker who is also a single mom is going to feel far from power and is also more vulnerable to being persuaded to give up one form of inequity over another. This

Invitation to Solidarity #TakeAKnee, #MeToo, and #TimesUp – all, not coincidentally, led by union workers -- are invitations to break the silence and offer support and solidarity to courageous workers (union and otherwise) who are calling out a myriad of abuses – racial violence, sexual violence, abuse of power by bosses, and more. The reality is that when the unions fail to address sexism and racism inside the union between/among leaders and members, it disrupts the possibility of solidarity. Women and people of color are often being asked to choose between the goals of the contract and the daily sexual harassment, assault and discrimination they face.

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While more women and people of color are in the workforce and joining unions – and together account for more than half of all union members—we’re all a long way from making good on the long-standing promise of race and gender equity. Some of our American beliefs, practices and ways of life are standing directly in the way of women, poor people and communities of color from attaining equality. If our basic union concept of solidarity is true, an injury to one is an injury to all, then ongoing racial and gender inequity stops all workers – including men and white workers – from attaining equality. So how do we make progress on this long-standing promise of equity for all workers? Communities of color are constantly under threat or attack, and often have little power to control the outcomes of these conflicts. The #TakeAKnee, #BLM and #MeToo campaigns are symbols of how desperate our neighbors and coworkers are to stop the unwanted behavior that surrounds them. These campaigns ask the wider population to consider how our system fails different cultural and racial identities in our society. They also point to something equally important to their economic rights -- safety. Economic rights without freedom from violence is no security at all. Workers care about our jobs, we care about our own, and our families’ experience at work and in the

world, and we care about basic human rights – including freedom from violence. With that recognition, here are four things to begin to build more safety, race and gender justice in our workplaces and our unions:

1. Look at Ourselves: the ways we have all participated in promoting, hiding or protecting sexual and racial violence in the spaces we occupy. Learn a bit about the vocabulary unfamiliar in this article. Think about a time you didn’t speak up, and why. 2. Let others’ experiences and

their validity stand unchallenged: so much of what we see with these culture-shifting campaigns is that people are afraid to admit that these problems are true and systemic because it is a source of personal shame and it upends that idyllic American dream that also sustains and nourishes our promise of a progressive labor movement. We must engage in new ways of listening that will be uncomfortable and will also bring the prospect of real transformation to all union members and workers more broadly.

OPINION

3. Embrace the possibility of a new way of leading:

by inviting people who experience oppression and violence at work to speak uninterrupted, and talk about what they need, the conversation in meaningful ways, we begin to see a new version of America and of our union movement - one in which there is not just one small sliver of resources to be split among all workers. Instead, we can see the abundance that is available for all workers. 4. Practice being an “upstander”: Someone who intervenes in meaningful ways when someone else can’t, because for that worker it might mean choosing between defending their bodies and feeding their children. No one should have to make that choice. If we have privilege and power in the workplaces where we exist, we should use that power for good and make new choices that keep workers safe and thriving in the workplace. After all, a powerful union standing in solidarity is only as strong as a thriving diverse workforce. We can start doing this by intervening in

BY ANA POLANCO

our workplace culture and having genuine discussion with people of color and women who are under daily attack in overt and subtle ways. (For a refresher on how to intervene when you see something going wrong, find the Steward Update article Solidarity in Scary Times at www.unionist.org/ upstander) Ana Polanco is a people and culture expert committed to changing the way we think, talk and collaborate around inclusive leadership and organizational change. Ana is a certified coach, recognized in unions and community organizations for her commitment to building inclusive, unionmember led campaigns and advancing human rights issues. For more info: anapolanco.org

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Grievances that Divide

Perspective from Bill Barry, retired Director of Labor Studies, Community College of Baltimore County-Dundalk

UNIONIST JANUAR Y 2018

The continuing controversy over Colin Kaepernick’s treatment by the National Football League for encouraging players to kneel during the Star Spangled Banner is unique, if for no other reason than suddenly the sports pages are filled with discussion about civil rights, workers’ rights and union contracts. This controversy is important for union stewards, however, because it’s a workplace issue, and has become a union issue, and one which resembles some of the divisive grievances we find in our own workplaces, where divisions among our members makes it difficult for the union to satisfy every member. This workplace issue for Kaepernick reflects a national movement of protest— against society-wide racism in general and police misconduct in particular. Recognizing that racism is symbolized by several stanzas of The Star-Spangled Banner, originally a poem written by slave owner Francis Scott Key, some players, inspired by Kaepernick, knelt when the anthem was played. The demonstration immediately became an issue for Kaepernick’s union, the National Football Players Association (NFLPA) because the protest he organized took place in his workplace—a football stadium-and Kaepernick, a union member, was “discharged” (as it were) as an employee for an action that may not have been for “just cause.” While pro football is a huge entertainment, it is also a business and the players are workers—employees of the various

teams—who have the as unionized workers in any industry. For union stewards who watch other grievances to learn from them, this particular case is both complicated and not standard. Players are governed by a collective bargaining agreement with NFLPA and individual contracts; plus, NFL contracts are much weaker than contracts for pro baseball and basketball players. For example, in pro baseball and basketball, a contract is a contract: a player released must be paid in full. In the NFL, a player can be cut and only owed the guaranteed percentage of the individual contract. By becoming a free agent so Kaepernick’s income was cut off.

This workplace issue reflects a national movement of protest against society-wide racism in general and police misconduct More importantly, there is no “just cause” clause for if you are released—it’s a coach’s unilateral decision so that’s almost like a non-union shop. There is, however, a clause in the union contract that restricts the unlimited right and challenges an eternal management tactic: the blacklist. As Michael McCann noted in Sports Illustrated: “If Kaepernick pursues a collusion claim, his first step would be to file a grievance under the CBA’s anticollusion provision: Article 17. Under it,

OPINION

BY BILL BARRY

teams cannot enter into any agreement— whether express or implied—to refrain from negotiating with a particular player. Collusion occurs when teams conspire, either with one another or with the league, against a player.”

This is an issue of union principle. A steward’s first step in controversial situations, as it should be in every grievance, is to go on a factfinding mission. Find out what really happened. Look around for witnesses. Check for any documentation – and with new technology, getting access to management communications is possible. Many cases show two very different versions: the worker’s side and the bosses’ claim so a steward must carefully try to figure out the facts. Try to take the emotion out of the situation: it’s really the only way to get a settlement. Find out, if possible, what is really going on. Has Kaepernick lost his skills or are the owners retaliating against him?

As the Kaepernick situation continues, it is worth remembering another hero of the union movement in professional sports, who filed a similar collusion lawsuit. In 1969, outfielder Curt Flood objected to a trade that would have sent him from the St. Louis Cardinals to the Philadelphia Phillies. Flood proclaimed: “After twelve years in the major leagues, I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several States.” Supported by a unanimous vote by Major League Baseball Players Association team representatives, Flood filed a $1 million lawsuit against the league ($6.8M in 2017 dollars). He lost at the Supreme Court in 1972 and was blackballed from baseball, just as Kaepernick alleges he is being punished for his social activism. Or is he? One of the difficulties for any union steward handling a discharge is figuring out what the real motivation is, especially if a member has been involved in union activities. The league officially claims that Kaepernick is not playing because he is not good enough and that his activism is not a factor. Finding some proof that his activism was the cause for his blacklisting is critical.

In a tough situation, a steward can look beyond the contract to see if there is some legal support. The National Labor Relations Act, for example, protects “concerted activities,” those which involve more than one worker or which speak for the grievances of a group of workers, not just one. As described in Noam Scheiber’s article “N.F.L. Players Who Protest Have an Ally in Labor Law” (New York Times. October 13, 2017), there is “work rule” in the NFL Operations manual that states that “players must be on the sidelines during the anthem and should stand.” Was this work rule negotiated or was it imposed unilaterally? Is it “reasonably related to the success of the business?” In either case, the union can dispute discipline for violating the work rule. There is yet another complicating aspect to the case. While Kaepernick claims to be filing “a grievance,” he is not going

UNIONIST JANUAR Y 2018

through his union, but has instead hired a private lawyer, Mark Geragos, who has represented several high-profile clients, including Michael Jackson, former NASCAR driver Jeremy Mayfield and musician Chris Brown. Whether an outside attorney can file a grievance under the union contract is an obvious question. (The union is supporting his action.) Outside of the “grievance,” or court case, the NFL and some players are engaging—as every steward should do in a discharge case—in settlement talks. Of course, again, this case isn’t standard – most settlements are about the grievant individual’s circumstance. Settlement talks in other situations are often controversial, and the Kapenick situation is no different. To smooth over the situation, the NLF offered $89 million (spread out over seven years) to a Players Coalition—not the union--which included both active and retired NFL players. The details of this settlement, however, split the group—San Francisco 49ers safety Eric Reed, who joined with Kaepernick in kneeling, and Miami Dolphins safety Michael Thomas denounced the allocation of funds, worked out by Eagles safety Malcolm Jenkins and retired player Anquan Bolden. “Myself and other protesting players are departing from the Players Coalition because we aren’t satisfied with the structure of the Players Coalition and the communication that’s been happening between Malcolm and the NFL,” Reid said to ESPN. And what about the players who do not agree with Kaepernick? A union is, by

its nature, a house divided—in most workplaces, the most common divisions are age, race, gender, skill level, language, personal ambition, political belief, family status, and personality—you name it, we got it. The difficulties of pulling all of these diverse members into a union are most obvious at contract time, when members look at the bargaining to see how they moved ahead. The same divisive issues can arise over grievances, making a steward’s day very complicated. Rumors are that some of Kaepernick’s teammates—and fellow union members— did not want to support the grievance. In these situations, a front-line steward has some very delicate decisions to make. Instinctively, a steward wants to defend a member against any discipline and to protect the union contract. The challenge comes when a grievance involves conflicts among the members, or involves behavior that the steward does not—or should not—condone. It may help to explain that the offending members are leaving themselves wide open to discipline, including discharge, if certain offensive activities continue and the union may not be able—or willing—to defend them. We don’t stand for certain things from the boss so we can’t allow our members to show these same bad traits things and expect to have full protection. Our members won’t—or should not—put up with sexual, racial, or other kinds of harassment. Every member is entitled to safety and respect on the job. Member education is very important. Your local could sponsor a presentation

OPINION

BY BILL BARRY

on gay rights, domestic violence or racial injustice—all issues for pro football players--because, in the best case, your members may not realize that some of their own behavior is offensive to other members and thus weakens the union. The union should not wait for the boss to do this training. Most employers have diversity consultants whose sole purpose in life is to keep the boss from being sued, not necessarily to get people working together in harmony. Situations will still likely arise, and when they do, the boss may simply fire everyone involved, then claim the problem has been solved. Sometimes a steward also has to be a kind of mediator, explaining that our members also need to appreciate, for example, that others have the same passion in opposite political positions, even as we set limits on the acceptable political discourse. Debate should be carried out in a civil manner so if (or when) it gets heated, take it off the job. (Also see our Steward Update article on productive political discussions, on our website)

sector, the DFR started with cases of racial discrimination—in Steele vs. Louisville and Nashville R.R. (1944), the white officers of the union refused to file grievances for their black members. It is also important for every member to understand that the goal is to build up and strengthen the union. For this, it is best to bring workers together as a group. After all, a union is a collective organization, not just a collection of individuals. Unions, at their best, fight for justice for all people and champion those who are the most vulnerable to abuses of power. Look at these situations, ugly as they may be, as opportunities to build the union and to spread positive values among your members and into the community.

Bill Barry, retired Director of Labor Studies, Community College of Baltimore CountyDundalk

A complicating factor arises when members demand that the union defend their behavior, threatening a Duty of Fair Representation (DFR) case if a grievance is not filed and carried on to arbitration. This legal question may be the easiest one to handle: the judgment of a steward may be challenged by higher officer but it is clear that the Union—however it makes decisions on grievances—is not required by law to file a grievance every time members ask for it. It is a great opportunity to educate your members about labor law because, in the private

UNIONIST JANUAR Y 2018

Perspective from Shaun Richman, writer and campaign consultant.

Beyond Bread & Butter: Labor Disputes for Social Justice

UNIONIST JANUAR Y 2018

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 ended 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.

activity and ordered Jimmy Johns to rehire the activists.

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.

Workers cannot surrender their free speech in the workplace nor limit their demands for a better world

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 sandwich chain Jimmy Johns, which fired worker 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

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 halfcentury-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

OPINION

BY SHAUN RICHMAN

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.

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.

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

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. Shaun Richman is a writer and campaign consultant. He is the author of the report “Labor’s Bill of Rights.” His Twitter handle is @Ess_Dog.