Legal question: selective lockout?

[ColoradoHockeyFan]

Can someone (resident legal experts... or anyone with a two-bit opinion ) please explain how the now oft-discussed "third option" can work? How can the owners selectively lift the lockout; i.e., for just players making under a certain amount? Is this legal? And if so, how would this allow/encourage other players to capitulate and return as well, which would be the ultimate goal?

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[Weary]

The league may be heartened by a couple of recent opinions by the NLRB which supported partial lockouts. In the past it was assumed that strikes and lockouts were an all-or-none deal. Everybody goes on strike, or no one does. Everybody gets locked out, or no one does. But just this past fall, the NLRB allowed two partial lockouts.

But the problem is that those partial lockouts had a logic behind who wasn't locked out. In the Bunting Bearings Corp. case the company did not lock out probationary workers. The logic being that those workers were not yet union members. In the Midwest Generation case the lockout started after a strike ended. The company did not lock out the workers who had crossed the picket line during the strike.

I think the league would have a difficult sell with locking out those making a certain amount and higher. For one thing, it would be a financial disaster if the NLRB didn't uphold it. They would likely have to pay everyone.

The other problem is if partial lockouts are found to be a legitimate option here, I'm sure the union will try a partial strike at sometime. Can you imagine the players from your team, and only your team, striking during the stretch run -- or even worse, during the playoffs?

I don't think option #3 is really an option.

 

[mudcrutch79]

I agree with weary. I have to think that it'd be seen as a blatant attempt to split the union, and thus an unfair labour practice. Moreover, I suspect that if this happened, the NHLPA would instantly have a strike vote, and proceed directly to a strike situation. All this would do would be to expose the NHL to the risk of a big fine. It seems to me that they'd be better off declaring an impasse-same stakes, but your stars will show up for work.

I'd also point out that were they to lift the lockout, they'd be right back where they started-a system that they feel is inherently inflationary, and no checks on management.

 

[Buffaloed]

A selective lockout amounts to an imposed CBA. The league can't impose a CBA without declaring an impasse and jumping through all the legal hoops that entails. There's no way a selective lockout will fly unless the league can get a favorable ruling on an impasse. Attempting to do so without going through the impasse procedure could result in a ruling that requires the NHL to take all players back under the previous CBA.

 

[ColoradoHockeyFan]

A selective lockout amounts to an imposed CBA. The league can't impose a CBA without declaring an impasse and jumping through all the legal hoops that entails. There's no way a selective lockout will fly unless the league can get a favorable ruling on an impasse. Attempting to do so without going through the impasse procedure could result in a ruling that requires the NHL to take all players back under the previous CBA.

And this is how I had always assumed it must work as well, which is why it's puzzling to hear people like Burke, who clearly has significant legal expertise, speak specifically of the distinction between using replacement players by declaring impasse and using replacement players without declaring impasse. He has been very specific about this difference, most recently on his last CKNW interview on Thursday night (which should still be archived).

 

[eye]

I agree with weary. I have to think that it'd be seen as a blatant attempt to split the union,

One more time. It's not a union. It's an association. If it was a union you wouldn't have 400 players playing right now and over 300 sitting back and waiting.

Maybe that would be a better solution. Lift the lockout for any player not under any form of professional contract as of today.

 

[Wetcoaster]

And this is how I had always assumed it must work as well, which is why it's puzzling to hear people like Burke, who clearly has significant legal expertise, speak specifically of the distinction between using replacement players by declaring impasse and using replacement players without declaring impasse. He has been very specific about this difference, most recently on his last CKNW interview on Thursday night (which should still be archived).

Where did you ever come up with the idea Brian Burke has "significant legal expertise"?

The only time he appeared as counsel (in the Krutov transfer fee dispute) he argued a legal theory which did not apply, screwed up his handling of witnesses and had his rear end well and truly kicked while losing a huge a mount of money for the Canucks.

His negotiation "record" speaks volumes for his lack of legal skill.

Burke is a joke in the Vancouver legal community for his "legal opinions".

 

[Wetcoaster]

One more time. It's not a union. It's an association. If it was a union you wouldn't have 400 players playing right now and over 300 sitting back and waiting.

Maybe that would be a better solution. Lift the lockout for any player not under any form of professional contract as of today.

You are wrong. Give it up. Repeating a falsehood many times does not convert it to the truth.

The NHLPA is a union. The NLRB recognizes the NHLPA as such (as it does the NFLPA, MLBPA and NBAPA) and it is a union as defined under the various provincial labour relations statutes.

 

[SENSible1*]

Where did you ever come up with the idea Brian Burke has "significant legal expertise"?

The only time he appeared as counsel (in the Krutov transfer fee dispute) he argued a legal theory which did not apply, screwed up his handling of witnesses and had his rear end well and truly kicked while losing a huge a mount of money for the Canucks.

His negotiation "record" speaks volumes for his lack of legal skill.

Burke is a joke in the Vancouver legal community for his "legal opinions".

How badly did Burkie beat you during negotiations over player contracts that you feel the need to constantly put him down?

I've got to believe he humiliated you on more than one occasion or are you vindictive enough to let one such stomping colour your opinion permenantly?

 

[Wetcoaster]

How badly did Burkie beat you during negotiations over player contracts that you feel the need to constantly put him down?

I've got to believe he humiliated you on more than one occasion or are you vindictive enough to let one such stomping colour your opinion permenantly?

Never happened. Wrong yet again.

 

[ColoradoHockeyFan]

Where did you ever come up with the idea Brian Burke has "significant legal expertise"?

The only time he appeared as counsel (in the Krutov transfer fee dispute) he argued a legal theory which did not apply, screwed up his handling of witnesses and had his rear end well and truly kicked while losing a huge a mount of money for the Canucks.

His negotiation "record" speaks volumes for his lack of legal skill.

Burke is a joke in the Vancouver legal community for his "legal opinions".

If I'm under the wrong impression about him having a legal background, fine. Rather than focus on that, could you instead offer something constructive here, like meaningful discussion of the distinction that Burke was raising? I'm not really that interested in a ranking of people's legal expertise. I'm just trying to understand the issues, and without a legal background of my own, I look to those with such background for assistance.

 

[mudcrutch79]

One more time. It's not a union. It's an association. If it was a union you wouldn't have 400 players playing right now and over 300 sitting back and waiting.

I'm not sure that there is any distinction, legally speaking. Is the PA a traditional union, where people get paid more according to seniority, and wages are set via the CBA? No, but that distinction is apparently legally irrelevant. If it was, it seems to me that we wouldn't be so bogged down in labour law issues at the moment.

It might make you feel better to argue a foolish point-whatever gets you through the night I guess. If you can't enunciate the difference from a legal perspective though, you'd be well advised to shut up about it. Try and contribute some signal for a change, as opposed to just noise.

 

[mudcrutch79]

Where did you ever come up with the idea Brian Burke has "significant legal expertise"?

The only time he appeared as counsel (in the Krutov transfer fee dispute) he argued a legal theory which did not apply, screwed up his handling of witnesses and had his rear end well and truly kicked while losing a huge a mount of money for the Canucks.

His negotiation "record" speaks volumes for his lack of legal skill.

Burke is a joke in the Vancouver legal community for his "legal opinions".

I'm trying to find some more info on this Wetcoaster. It's difficult to form an opinion on this in the abstract. I believe that the arbitration was in Sweden-would the decision be published anywhere? What was the specific institution that conducted the arbitration? I've got academic access to Qlaw and Westlaw, so I might be able to find it in a database there if it was a publicly released decision.

 

[eye]

I'm not sure that there is any distinction, legally speaking. Is the PA a traditional union, where people get paid more according to seniority, and wages are set via the CBA? No, but that distinction is apparently legally irrelevant. If it was, it seems to me that we wouldn't be so bogged down in labour law issues at the moment.

It might make you feel better to argue a foolish point-whatever gets you through the night I guess. If you can't enunciate the difference from a legal perspective though, you'd be well advised to shut up about it. Try and contribute some signal for a change, as opposed to just noise.

Why then does Goodenow get upset when his association is referred to as a union by Bettman?

Google Search definition of an Association.

"A group of people who have joined together for a common purpose. Unlike a corporation, an association is not a legal entity. The law may treat an association like a corporation, however, if it has been operating in a corporate manner -- for example, if it has a charter and shareholders".


I know when I worked for a union and there was a work stoppage for any reason the workers would stick together and walk the picket line together. Something tells me that if and when the PA calls for members to strike that there will be a major split among the players. Those playing in Europe won't give it up to walk the line in North America and that won't sit well with the players that do.

I'm really hopeful that the players and the agents made it clear to Goodenow last week to get a deal done even if it means taking less than was offered last month. If not, this is going to get even more ugly and nasty.

 

[mudcrutch79]

Why then does Goodenow get upset when his association is referred to as a union by Bettman?

Google Search definition of an Association.

"A group of people who have joined together for a common purpose. Unlike a corporation, an association is not a legal entity. The law may treat an association like a corporation, however, if it has been operating in a corporate manner -- for example, if it has a charter and shareholders".


I know when I worked for a union and there was a work stoppage for any reason the workers would stick together and walk the picket line together. Something tells me that if and when the PA calls for members to strike that there will be a major split among the players. Those playing in Europe won't give it up to walk the line in North America and that won't sit well with the players that do.

I'm really hopeful that the players and the agents made it clear to Goodenow last week to get a deal done even if it means taking less than was offered last month. If not, this is going to get even more ugly and nasty.

So the point of all that is, legally speaking, you have nothing when you insist on a difference between an association and a union? Believe it or not, Google is not a legal authority. While it's true that an association does not exist separately, this has nothing to do with unions, and everything to do with the distinct legal personality that a corporation has. It's also true that the NHL has recognized the PA as a union, and that they negotiate CBA's with them. I've never seen Goodenow's quote about the PA not being a union, but I doubt it amounts to much.

Again, this is a pointless argument to make.

 

[Wetcoaster]

I'm trying to find some more info on this Wetcoaster. It's difficult to form an opinion on this in the abstract. I believe that the arbitration was in Sweden-would the decision be published anywhere? What was the specific institution that conducted the arbitration? I've got academic access to Qlaw and Westlaw, so I might be able to find it in a database there if it was a publicly released decision.

Excerpts from the transcripts were published in the Vancouver Province at the time and there was a significant amount of reports and quotes. The newspaper archives would have this. If you have a public library card most library have many of the archived newspapers on-line.

 

[Wetcoaster]

If I'm under the wrong impression about him having a legal background, fine. Rather than focus on that, could you instead offer something constructive here, like meaningful discussion of the distinction that Burke was raising? I'm not really that interested in a ranking of people's legal expertise. I'm just trying to understand the issues, and without a legal background of my own, I look to those with such background for assistance.

Burkie has a legal background (a law degree) , he just does not have any legal expertise.

As others here have noted, use of replacement players requires a declaration of impasse according to the US labour cases I have seen. This appears to rank right up there with some of Burkie's past "legal analyses".

 

[Weary]

Burkie has a legal background (a law degree) , he just does not have any legal expertise.

As others here have noted, use of replacement players requires a declaration of impasse according to the US labour cases I have seen. This appears to rank right up there with some of Burkie's past "legal analyses".

Before you go around trashing others, you may want to be sure of your facts. Replacement workers may be used during a lockout. It's perfectly legal in the U.S. as long as the replacements are temporary.

 

[Wetcoaster]

Why then does Goodenow get upset when his association is referred to as a union by Bettman?

Google Search definition of an Association.

"A group of people who have joined together for a common purpose. Unlike a corporation, an association is not a legal entity. The law may treat an association like a corporation, however, if it has been operating in a corporate manner -- for example, if it has a charter and shareholders".

I know when I worked for a union and there was a work stoppage for any reason the workers would stick together and walk the picket line together. Something tells me that if and when the PA calls for members to strike that there will be a major split among the players. Those playing in Europe won't give it up to walk the line in North America and that won't sit well with the players that do.

I'm really hopeful that the players and the agents made it clear to Goodenow last week to get a deal done even if it means taking less than was offered last month. If not, this is going to get even more ugly and nasty.

Where do you come up with this stuff????? Goodenow does not get upset when Bettman refers to the NHLPA as a union nor anyone else. The NHLPA refers to itself as union as does Goodenow.

If you go to the NHLPA website you will find that the NHLPA descibes itself as:

The National Hockey League Players' Association

The NHLPA is a labour union whose members are the players of the NHL and whose mandate is to represent their interests.

A union is not a corporation. The definition of a union is found in the various labour statutes not a Google search for something that is irrelevant.

Under the US NLRA the term used for union is a "labor organization" and under the BC Labour Relations Code the term used is "trade union". Both definitions encompass the NHLPA.

National Labor Relations Act
(Also cited NLRA or the Act; 29 U.S.C. Sec. Sec. 151-169)
[Title 29, Chapter 7, Subchapter II, United States Code]

Definitions
Sec. 2. [Sec. 152.] When used in this Act [subchapter]--

(5) The term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

And in BC:

LABOUR RELATIONS CODE
[RSBC 1996] CHAPTER 244

Definitions
1 (1) In this Code:

"trade union" means a local or Provincial organization or association of employees, or a local or Provincial branch of a national or international organization or association of employees in British Columbia, that has as one of its purposes the regulation in British Columbia of relations between employers and employees through collective bargaining, and includes an association or council of trade unions, but not an organization or association of employees that is dominated or influenced by an employer;

The NHLPA is a union legally and in fact and function.

In case you missed the reports the players and agents coming out of the meetings were solidly behind Goodenow and the Executive Committee. Even JR apologized for his previous comments and actions and stated he was on the same page with his fellow NHLPA members. Mind you it is not having much effect on JR as the last I heard he was still considered disabled so he is being paid his salary by the Flyers.

As far as striking, that is in the future and the NHLPA has already given its blessings to players to seek employment in Europe or wherever. I do not see that as major problem for the NHLPA.

 

[kdb209]

Why then does Goodenow get upset when his association is referred to as a union by Bettman?

Google Search definition of an Association.

"A group of people who have joined together for a common purpose. Unlike a corporation, an association is not a legal entity. The law may treat an association like a corporation, however, if it has been operating in a corporate manner -- for example, if it has a charter and shareholders".


I know when I worked for a union and there was a work stoppage for any reason the workers would stick together and walk the picket line together.

I just did a Google search on Association and guess what, I guess Bob Goodenow and the NHLPA sang the song "Windy" in the 60's.

Both Google results have about the same revelance to the current situation.

The NHLPA is by all legal definitions a union.

Now not all unions are the same - not all are blue collar, paid purely by seniority, break heads on the picket line, <insert any union stereotype you like here>. But never the less they are unions.

 

[Wetcoaster]

Before you go around trashing others, you may want to be sure of your facts. Replacement workers may be used during a lockout. It's perfectly legal in the U.S. as long as the replacements are temporary.

Of course they can but that was not the issue.

Once a bargaining impasse is declared then the NHL is free to try to open for business and use replacement players. The NHLPA then has certain options such as folding and going back to work, striking and filing motions with the NLRB resisting the bargaining impasse decalaration or decertifying as a union, returning to play and using antitrust law to carry on the dispute.

Burke is claiming that the NHL can use replacements without declaring a bargaining impasse in the US and that is not correct according to my reading of the case law on this point.

In Canada we have no such thing as bargaining impasse declaration so I suppose the NHL teams in Ontario and Alberta could try to open for business however I would expect that the NHLPA would challenge such actions before the respective labour boards. Whether the NHL can even do this without first going before the provincial labour board is an open question - but I suspect not based on conversations I have had with both management and union labour lawyers here.

Also such actions may open up the NHL to giving jurisdiction and power in the dispute to the Canadian provincial labour relations boards and that I do not see as something the NHL wants to chance as our labour relations boards tend to be much more interventionist than the NLRB.

In BC and Quebec provincial law prohibits replacement workers and there have been reports that the Ontario government is set to re-introduce that ban which prevented the Blue Jays from using replacement players in Ontario during the 1994 "scab ball" league.

I have listened to Burkie's "legal analysis" for over 15 years and he is often wrong. YMMV.

 

[shveik]

To me it looks like using the replacements without an impasse is a big gamble. It opens it up for a legal challenge, and at the same time increases the chances of NLRB finding the NHL bargaining in bad faith. The only way it would seem as an acceptable course of action, if the NHL doesn't mind operating under the old CBA (likely outcome of this attempt), but would really like to try breaking the union.

 

[Weary]

Burke is claiming that the NHL can use replacements this without declaring a bargaining impasse in the US and that is not correct according to my reading of the case law on this point.

Please refer to Harter Equipment.

 

[ColoradoHockeyFan]

Please refer to Harter Equipment.

Is this the case to which you are referring?

http://www.nlrb.gov/nlrb/shared_files/decisions/280/280-597.txt

 

[Wetcoaster]

Please refer to Harter Equipment.

Yes?????????????

According to Harter Equipment as long as true bargaining impasse has been reached then the employer is free to use replacement workers as a temporary solution. That is my point. You need a bargaining impasse. That was the MLB attempt at a replacement league that failed before the NLRB.

Burkie claims otherwise or has been reported as claiming otherwise. That is not correct.