A swift, unexpected undercut blow by the National Labor Relations Board (NLRB) has thrown Leslie Smith and Project Spearhead up against the ropes.
Smith’s unfair labor practice (ULP) complaint against the UFC was dismissed September 19. The NLRB’s national office found the UFC did not retaliate against Smith when it bought out her contract and released her after UFC Fight Night 128 was canceled in April.
This ruling comes three months after the NLRB’s Region 4 office found merit to the retaliation charge then quickly backtracked and informed Smith it would be sending the case to the NLRB’s Division of Advice for review—a move labeled a political stunt by Smith’s attorney Lucas Middlebrook.
“Late today, Region 4 informed us it had been instructed, post-decision, to send the case to D.C. for review. Opinion: UFC, unable to prevail on merits, pulled political strings to delay responsibility. Blatant delay tactic—Leslie will take all legal means to ensure Region 4 decision stands.”
Middlebrook repeated the political stunt claim during a panel discussion held Tuesday, September 25, at Rutgers University.
“Now, isn’t that convenient for the UFC? Their entire business model hung in the balance if a federal agency said, yes, these fighters are employees,” Middlebrook said. “Unlike Region 4, which judged this on its merits and according to the law, D.C.’s decision was nothing but the result of a political stranglehold.”
During the discussion, Middlebrook explained it was clear the NLRB was planning to dismiss the case. “The meeting lasted about two hours, and it was obvious from the tenor of the meeting which way they were leaning, and that was obviously in the UFC’s favor,” said Middlebrook. “And I asked the general counsel, ‘Why are we even here? Why does D.C. have this case?’ Region 4 issued a merit determination, then D.C. says (Washington) needs to see the case? In all my years practicing, I’ve never seen that happen. And you know what Peter Robb said in response to that? ‘I haven’t either.’”
Smith’s ULP complaint filed in May alleged the UFC violated the National Labor Relations Act by retaliating against her for trying to organize fellow fighters. Smith and Project Spearhead had hoped the charge would lead the NRLB to classify fighters as direct employees of the UFC, not independent contractors.
Next Steps
Smith will be filing an appeal today against the decision, saying, “We lost this battle, but maybe that opens up more doors that can lead to a bigger win.”
Smith’s appeal will go directly to the Office of Appeals at the NRLB, which falls under the direction of the General Counsel’s office. “We’re appealing to the person (Peter R. Robb) who just rendered the punishment, but we have to do it,” Middlebrook said.
Robb was appointed to the post by Donald Trump, who happens to be good friends with UFC boss Dana White. Coincidence? I don’t think so.
Former NLRB chairman William Gold told Bloomberg News the appeal would be difficult to prove. “It’s very unusual” for the board to reverse a regional director’s decision,” Gould said. “That’s particularly true when the general counsel has stepped in, as happened in this case.”
Of course, Smith has other options outside the NLRB.
She could take the complaint to the state level, or other federal agencies who handle issues of retaliation and discrimination—EEOC, Department of Labor, the state human rights commission, or state labor commission.
Will the organizing efforts continue? Yes.
Smith and Project Spearhead are still reaching out to fighters and collecting union authorization cards, despite the “chilling effect” setting in after her release.
“I feel like the fighters all need representation. I just see the path in helping UFC fighters,” she said.
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