EricBowser
Registered User
http://www.lawmemo.com/articles/hardball.htm
This link is a good read to help anyone wondering about the declaration of an impasse and implementation
"Before an employer actually implements its pre-impasse proposals, it must be sure that an impasse does indeed exist. An impasse is defined in the law as the point at which further discussions would be futile. Designating a situation as futile is by no means an empty philosophical exercise; it is a fact-laden legal determination that has spawned countless NLRB and court decisions. Here are some of the factors that are likely to be an important part of the debate:"
1. "bargaining history of the parties"
--- The NHL has a long and extremely bad history of bad faith negotiating with the NHLPA but you can bet the NHL will argue the league has corrected itself since hiring Gary Bettman, having an audit by Arthur Levitt, and offering the union since 1998 to audit their books.
2. "good faith of the parties"
--- "Delay Tactics", NHL has tried to open up the CBA for years, so NHLPA has no shot with one
--- "unreasonable demands", NHLPA won't be able to use the cap since other hockey leagues have it
--- "efforts to bypass the union", NHL has tried to constantly say it is up to the union to decide for a vote, etc
--- "failure to designate an agnet", I assume this means a bargaining group, NHL has Bettman, Daly, and other lawyers
--- "arbitrary scheduling of meetings", both publicly stated they are open to talks since lockout, both sides were stubborn
--- "employer has withdrawn already agreed-upon provisions", NHL has never to my knowledge agreed to anything in writing
3. "length of negotiations, although no set number of meetings are required"
--- NHL has tried to negotiate and begin discussions for years and since lockout, so again, this won't stop impasse
4. "importance of issues on which the parties are deadlocked"
--- NHL and NHLPA are not even close with cap or tax issue, absolutely deadlocked. Once the NHLPA agrees to negotiate a cap, the deadlock issue won't exist. The NHL tried to work on their system but the talks were back at a deadlock.
5. "belief of the parties as to whether impasse exists"
--- Daly & Saskin made it clear, they won't move on their offers
6. "rejection of a final offer by the rank-and-file union membership"
--- This is where things get interesting. NHLPA claims league made a final and best offer but yet did not hold a vote but NHL says they never gave a final offer so until the NHL does so, there won't be an impasse declared. You have to give a final offer before you can claim an impasse. If the league does so and the NHLPA refuses to send a vote, it will help the NHL.
7. "union’s rejection of proposals without presentation of counterproposal or requesting more time to negotiate"
--- NHL has made three straight proposals without any counter offer by the players or request to negotiate on the last offer
8. "union’s refusal to recommend a final offer to the rank-and-file for ratification"
--- NHLPA has repeatedly said they will not send any NHL offer iwth a cap to a vote, this would be foolish by PA
9. "union’s withdrawal from negotiations without attempting to schedule more meetings"
--- It could be argued but unlikely, the NHLPA has all but withdrawn from negotiating in good faith since their December 9th offer due to the league making 3 offers to none countered. Daly wondered aloud why the NHLPA asked for them to stay overnight, you have your answer right here. They needed to show an attempt to schedule more meetings. It will be crystal clear to a labor judge of the NHLPA's tactic this week.
10. "whether reasonable time existed for the union to review information supplied to it by the employer and analyze its impact on counteroffers."
--- The NHL made the offer on Wednesday night, union rejected it that night wtihout even having enough time to review it so the NHL will say, they made a decision. They've also had how many days since the offer was made on Wednesday and since the bulk of the offer was their own from December 9, a judge won't be too interested in hearing the NHL's complaints of no time.
"Employers who wish to keep open the “impasse and implementation†strategy must establish a track record of choosing their words carefully. If a party indicates that its position on one issue is flexible and can be traded off for other concessions, there may be no impasse. Moreover, if the last meeting resulted in settlement of some issues or significant movement by either party, it is unlikely that an impasse can be proved."
NHL made it clear, this was an attempt to save the season and went against what they have tried to negotiate in good faith and since the offer included their cap system if the trigger points were hit, means, the league truly never left their main bargaining position just was trying to save a season. Once the season is gone, NHL will likely withdraw any offer on the table that includes a luxury tax and go back to their original offers prior to this week. Since nothing was agreed upon, they can move back to their position.
This link is a good read to help anyone wondering about the declaration of an impasse and implementation
"Before an employer actually implements its pre-impasse proposals, it must be sure that an impasse does indeed exist. An impasse is defined in the law as the point at which further discussions would be futile. Designating a situation as futile is by no means an empty philosophical exercise; it is a fact-laden legal determination that has spawned countless NLRB and court decisions. Here are some of the factors that are likely to be an important part of the debate:"
1. "bargaining history of the parties"
--- The NHL has a long and extremely bad history of bad faith negotiating with the NHLPA but you can bet the NHL will argue the league has corrected itself since hiring Gary Bettman, having an audit by Arthur Levitt, and offering the union since 1998 to audit their books.
2. "good faith of the parties"
--- "Delay Tactics", NHL has tried to open up the CBA for years, so NHLPA has no shot with one
--- "unreasonable demands", NHLPA won't be able to use the cap since other hockey leagues have it
--- "efforts to bypass the union", NHL has tried to constantly say it is up to the union to decide for a vote, etc
--- "failure to designate an agnet", I assume this means a bargaining group, NHL has Bettman, Daly, and other lawyers
--- "arbitrary scheduling of meetings", both publicly stated they are open to talks since lockout, both sides were stubborn
--- "employer has withdrawn already agreed-upon provisions", NHL has never to my knowledge agreed to anything in writing
3. "length of negotiations, although no set number of meetings are required"
--- NHL has tried to negotiate and begin discussions for years and since lockout, so again, this won't stop impasse
4. "importance of issues on which the parties are deadlocked"
--- NHL and NHLPA are not even close with cap or tax issue, absolutely deadlocked. Once the NHLPA agrees to negotiate a cap, the deadlock issue won't exist. The NHL tried to work on their system but the talks were back at a deadlock.
5. "belief of the parties as to whether impasse exists"
--- Daly & Saskin made it clear, they won't move on their offers
6. "rejection of a final offer by the rank-and-file union membership"
--- This is where things get interesting. NHLPA claims league made a final and best offer but yet did not hold a vote but NHL says they never gave a final offer so until the NHL does so, there won't be an impasse declared. You have to give a final offer before you can claim an impasse. If the league does so and the NHLPA refuses to send a vote, it will help the NHL.
7. "union’s rejection of proposals without presentation of counterproposal or requesting more time to negotiate"
--- NHL has made three straight proposals without any counter offer by the players or request to negotiate on the last offer
8. "union’s refusal to recommend a final offer to the rank-and-file for ratification"
--- NHLPA has repeatedly said they will not send any NHL offer iwth a cap to a vote, this would be foolish by PA
9. "union’s withdrawal from negotiations without attempting to schedule more meetings"
--- It could be argued but unlikely, the NHLPA has all but withdrawn from negotiating in good faith since their December 9th offer due to the league making 3 offers to none countered. Daly wondered aloud why the NHLPA asked for them to stay overnight, you have your answer right here. They needed to show an attempt to schedule more meetings. It will be crystal clear to a labor judge of the NHLPA's tactic this week.
10. "whether reasonable time existed for the union to review information supplied to it by the employer and analyze its impact on counteroffers."
--- The NHL made the offer on Wednesday night, union rejected it that night wtihout even having enough time to review it so the NHL will say, they made a decision. They've also had how many days since the offer was made on Wednesday and since the bulk of the offer was their own from December 9, a judge won't be too interested in hearing the NHL's complaints of no time.
"Employers who wish to keep open the “impasse and implementation†strategy must establish a track record of choosing their words carefully. If a party indicates that its position on one issue is flexible and can be traded off for other concessions, there may be no impasse. Moreover, if the last meeting resulted in settlement of some issues or significant movement by either party, it is unlikely that an impasse can be proved."
NHL made it clear, this was an attempt to save the season and went against what they have tried to negotiate in good faith and since the offer included their cap system if the trigger points were hit, means, the league truly never left their main bargaining position just was trying to save a season. Once the season is gone, NHL will likely withdraw any offer on the table that includes a luxury tax and go back to their original offers prior to this week. Since nothing was agreed upon, they can move back to their position.
