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By Jaclyn Diaz
Professional mixed martial arts fighter Leslie Smith’s charge against the UFC looked to be moving in her favor late last week, but a sudden change appears to have knocked the wind out of her case.
Smith filed with the National Labor Relations Board May 2 claiming the largest MMA organization in the world, the UFC, ended her contract in retaliation for union activity. She also argues she and other fighters are misclassified as independent contractors for the UFC and should be considered employee sof the organization. Smith began attempting to unionize her fellow fighters back in February.
The NLRB’s regional office in Philadelphia notified Smith June 29 that the regional director found merit in the case and would be issuing a complaint against UFC within the next month, her attorney, Lucas Middlebrook, told Bloomberg Law.
The celebration for Middlebrook and Smith was short-lived as the regional office contacted Middlebrook again. This time, it said the case was instead heading to the Division of Advice at the request of the NLRB headquarters in Washington, D.C., Middlebrook said.
“It’s really odd the way it’s happened,” he said.
The Division of Advice is located within the Office of the General Counsel and, in part, provides guidance and instructions to the agency’s regional directors in unfair labor practice cases.
NLRB General Counsel Peter Robb sent regional directors a memorandum in December encouraging them to seek Division of Advice input in cases that present “novel legal theories.” In the same memo, he rescinded a memo issued by his predecessor that said an employer’s misclassification of employees as independent contractors violates the National Labor Relations Act.
But the way in which this case went from Region 4 to the Division of Advice has some employer-side attorneys wondering if there’s something deeper happening.
The NLRB website doesn’t contain any documents related to the recent decision. A board representative sent a link to the case’s page but didn’t confirm that it been brought to the Advice Division.
The UFC said it wasn’t motivated to end Smith’s contract by her union organizing activities. The organization “presented a strong record of Leslie Smith’s status as an independent contractor,” it said in a July 2 statement. “We intend to vigorously defend our position, should it be necessary,” it said.
The use of the Division of Advice isn’t unusual, but in this case it could be indicative of a change in approach by Robb, said Mark Neuberger, an attorney for Foley & Lardner LLP who isn’t involved in the case.
Robb said in January that he was considering a change to the regional office system that could include more oversight from Washington, according to a memo by regional directors. Robb said publicly during a labor law conference in June that he’s considering a reorganization to accommodate continued budget cuts. Consolidating the regional offices would cause “too much upheaval,” he said June 7.
The issue of employee misclassification would be “ripe for advice” anyway as it has been tackled by Robb’s predecessor, according to William Gould, a former NLRB chairman. But Gould agreed with Neuberger that the way this case was handled suggests it is “part of this overall centralization approach” reflecting Robb’s philosophy at the NLRB.
“They seemed to realize that if you want to change the direction of the organization, you have to change the direction of the regions,” Neuberger said. “Some people have held to a longstanding common perception that regions are friendlier towards workers and unions. If you wanted to shake things up you would demand stronger controls in Washington. One way to do that would be through getting the regions to march in the same direction as the general counsel.”
The move toward the Division of Advice may be beneficial to the employer as it delays the proceedings and holds off a complaint against the UFC.
“An employer doesn’t want a complaint issued. That’s the employer’s goal anywhere,” Neuberger said.
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