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LAWYERIN': COULD THE UNION KILL THE TWITTER BAN?

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If Iowa football players are employees, could Kirk Ferentz prohibit them from using Twitter?

Kyle Terada-USA TODAY Sports

LAWYERIN' is an infrequent series in which the Law Offices of Black, Heart, Gold and Pants discusses legal issues related to Iowa athletics. Usually, we get some outside help. Today is no exception.

The following comes from attorney and Friend of the Pants Nate Willems, who practices labor law in Cedar Rapids. In the third of a multi-part series, Nate looks at just what Iowa could prohibit its players from doing if they were employees, and whether Iowa football could actually strike.

In part one, we examined Iowa's public sector labor law, Chapter 20, and concluded that more likely than not Hawkeye football players have rights under Chapter 20 to form a labor union. In part two, we speculated as to the types of things a players' union could bargain over with the University. In this part, we look at potential rights Hawkeye football players may have under Chapter 20 even if they never form a union.

In the private sector, it is typically said the cornerstone of workers' rights are their NLRA Section 7 rights: the right "to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection." Iowa law largely replicates this in Chapter 20.8(3). What do "concerted activities" mean?

The best known and most obvious Section 7 right is the right to strike. If the NLRB decision is affirmed, Northwestern football players will have the right to strike. If they go on strike, Northwestern can hire temporary or permanent replacements but cannot discharge players for going on strike. The inverse of the right to strike is the employer's right to lockout workers - nobody is allowed to work until the union gives in to the employer's demands.

Iowa law takes both of these options off the table. We expressly forbid public employees from going on strike and public employers form locking out their workers. This does not just mean an organized strike, but could also forbid players from taking part in some type of player walkout. If a contract issue cannot be resolved, we don't take it to the streets we take it to arbitration as was touched upon in part two.

So, what else does concerted activities mean if it cannot include the right to strike? There are traditional concerted activities like picketing, handbilling, talking to your co-workers about a union, wearing a button on your clothing indicating support for a union. These activities, though, seem to presume that somebody has a union or is trying to form a union. What if there is no organized effort having anything to do with a union?

Go back to the phrase "or other mutual aid or protection." If two or more employees in a non-union workplace complain to their boss about unsafe working conditions, they are engaging in concerted activities for mutual aid or protection. This is protected conduct and they cannot be disciplined or discharged for it. Assuming that Hawkeye football players are employees under Chapter 20, they have the same right to complain about practice, their weight lifting program or other working conditions.

This right does not stop with the right to complain to your boss. In the private sector, employees do not lose their protection "when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship." In other words, employees have the
right to take their work complaints to facebook or twitter. Since the wording of this part of Chapter 20 is virtually identical to the NLRA and Iowa tends to follow private sector precedent when the language is similar, Hawkeyes probably have these same rights.

Therefore, if the University of Iowa had a blanket policy such as "no Hawkeye football player may use twitter" such a policy is probably overly broad and may be unenforceable
depending on the situation.

There is a lot of grey area here as to what constitutes protected concerted activity and what does not. The NRLB has found "activity by a single employee for that individual's personal benefit is not concerted activity." One big consideration is whether it is one player making a statement or a group of players collaborating in a series of statements.

A player tweeting that the guy who starts ahead of him is garbage and should be on the bench is probably not protected activity. In contrast, a group of players tweeting back and forth at each other that they do not like the team curfew is probably an exercise of their rights under 20.8(3). It is a lot safer for a person to complain on facebook about work if co-workers comment or like the post than if it just hangs out there all alone.

Any policy which seeks to limit this cannot be legally enforced nor can the University "interfere with, restrain or coerce" a person from engaging in the behavior. If the content of the speech is personal to that player or profane it is less likely to be protected activity. On the other hand, if two or more Hawkeye players went on the Blackheartgoldpants podcast to express their frustrations with the football program, I don't think there is anything the University can do legally to stop them or punish them for it. The football program can have a social media policy, but it really should be tailored to not interfere with, restrain or coerce players from engaging in concerted activities for mutual aid or protection.

Again, you don't need a union to have these rights. These rights exist by law and not by a union contract. Of course, this analysis presumes that Hawkeye football players are public employees under Chapter 20 and not excluded by working twenty hours per week or less or some other reason. It is at least possible the Board of Regents has not yet reached this same legal conclusion.