SJ Mercury: NHL/NHLPA far from legal impasse

[MeisterBruinmaker]

David Pollak reported in Tuesday's San Jose Mercury News that declaring an impasse and winning the case are two different things. He opines that this could be one reason the NHL may not be eager to resume negotiations. In essence, by coming to the table and engaging in talks, the NHLPA could show 'good faith' bargaining -- while still not giving in to the NHL's desire for a cap.

The issue for the NHL is that they have to declare an impasse in order to implement "cost certainty'' and eventually re-open the league with replacement players (should the players strike). According to the experts referenced in the article, the NHLPA does not have to take drastic steps in order to show they are "making an effort" to avoid an impasse.

For instance, Bob Goodenow could make a reasonable counteroffer that could be good enough to convince the US labor board that negotiations were making progress. To do that, he doesn't have to give in to the NHL's wishes for a salary cap, yet taking this step in of itself could weaken the league's case.

Another point was made by Paul Staudohar, a professor of business administration at Cal State-Hayward and author of ``Playing for Dollars: Labor Relations and the Sports Business.'' He said the labor board plays a key role in the process, noting the 1994 dispute between baseball owners and players. Back then, the owners attempted to impose a salary cap on striking players, but the board sided with the union and a federal court agreed. He also said that because the NHLPA has already filed an unfair labor practice charge with the labor board, they've accomplished the secondary goal of establishing a relationship with the NLRB

The last point speaks to the negotiating and legal prowess of the NHLPA. For instance, since the last CBA was implemented, it has been the NHLPA who's lawyers and agents have effectively leveraged the system, rather than the NHL. One of the most successful fronts has been RFA arbitrations, where the NHLPA has been better prepared and most often the winners of cases. This overall prowess is part of the reason salaries have continued to escalate.

Lastly, law professor Ross said that while there is no minimum time required before the NHL can go to the National Labor Relations Board to declare an impasse, the NHL should have at least one more negotiating session where it says, "Here is our last and final offer, and if you don't take that, then we impose.''

All in all, it certainly doesn't sound like a simple case for the NHL to declare an impasse and win...

Click to read more...

 

[HckyFght*]

David Pollak is more than likely a union guy. They're at an impasse now. It's that simple. Bring on the scabs!
-HckyFght!

 

[GKJ]

David Pollak is more than likely a union guy. They're at an impasse now. It's that simple. Bring on the scabs!
-HckyFght!

And you can pay 50 bucks a game to go see them.



Youre gonna wanna not do that.

 

[Buffaloed]

The NHL is even further from being able to declare an impasse under Canadian labor law where the standard is higher. They wouldn't be permitted to hire replacement workers in Quebec and British Columbia in any case as it's prohibited.

 

[Tom_Benjamin]

The NHL is even further from being able to declare an impasse under Canadian labor law where the standard is higher. They wouldn't be permitted to hire replacement workers in Quebec and British Columbia in any case as it's prohibited.

I don't think there is any standard at all. Labour disputes do reach impasse but I don't the employer can ever impose a CBA. I'm not sure about this - I'd like to hear from somebody who does know more about it than I do - but I don't think they can do it.

In the baseball dispute, both Toronto and Montreal were planning to play out of their spring training facility because replacements were illegal in both Ontario and Quebec. I don't think they are illegal in Ontario any more, but I don't think any Canadian jurisdiction permits the employer to impose a CBA.

The only people who are going to make a ton of money from this dispute are the lawyers.

Tom

 

[hillbillypriest]

I don't think there is any standard at all. Labour disputes do reach impasse but I don't the employer can ever impose a CBA. I'm not sure about this - I'd like to hear from somebody who does know more about it than I do - but I don't think they can do it.

I don't think I fit your criteria of someone who knows more than you do, but I will venture an opinion here. If there has been a prolonged breakdown in negotiations and (debatable assumption here) a determination that the breakdown followed good faith negotiations, I don't see why the employer can't reasonably impose a new set of employment terms. "Impose" is a bad use of words here, because I don't see how they are imposing anything so long as the counterpart union is not required to actually report to work accept the terms. If this were to happen, my understanding is that the NHL would end the lockout and invite the players to come back and accept the terms. At that point, the players are still free to negotiate collectively. If as a group, they vote to accept the new terms, the league resumes under the new, unilaterally determined, CBA. If they don't, then the stoppage changes from an owners lockout to the players strike against work conditions they did not negotiate.

For me this makes sense, because (taking a theoretical perspective here) it empowers those players in the union who may not have agreed with the union concensus to reject the NHL's deal to make a free choice. From the perspective of this type of player, it makes sense because it gives some choice back to a player that, from a point of view, may be perceived to have been held "hostage" to a prolonged impasse that did not reflect that player's willingness to accept the terms of employment offered by the league. As I mentionned, this is my "common sense" interpretation of why there is a rationale for allowing an employer to dictate the terms of employment after a long period where everybody is losing because the parties can't get together on a collective agreement. I, like you, am entirely open to additional legal perspective on this.

In the baseball dispute, both Toronto and Montreal were planning to play out of their spring training facility because replacements were illegal in both Ontario and Quebec. I don't think they are illegal in Ontario any more, but I don't think any Canadian jurisdiction permits the employer to impose a CBA.

I think you're talking two different things here. Ontario and Quebec and BC all had so called "anti-scab" laws. I think that only Quebec and BC do now. If I were the NHL, I would work around this simply by building a schedule that didn't include those jurisdictions. This may sound harsh to fans of Montreal (domage!!) and Vancouver (ROFL, sorry Tom) but I would do it if I was the NHL.

See above in regards to my views on whether a collective agreement can be imposed in other Canadian cities. Don't see why not. Again open to any info (this is a learning process here anyway).

The only people who are going to make a ton of money from this dispute are the lawyers.
Tom

Amen to that thought!!

HBP

 

[thinkwild]

For me this makes sense, because (taking a theoretical perspective here) it empowers those players in the union who may not have agreed with the union concensus to reject the NHL's deal to make a free choice. From the perspective of this type of player, it makes sense because it gives some choice back to a player that, from a point of view, may be perceived to have been held "hostage" to a prolonged impasse that did not reflect that player's willingness to accept the terms of employment offered by the league.
HBP

That does make sense. If there was good faith negotiations.

If they did manage to impose a CBA, but the 500 top players remained united, do they have to join the new union to cross and play? Could decertified players be picked up as free agents in the new imposed cba?

 

[Tom_Benjamin]

I, like you, am entirely open to additional legal perspective on this.

I think it is entirely a legal perspective. I'm sure it would depend on the labour code and the case law. I don't doubt the reasonableness of the position you advance, but it is also reasonable to define the declaration of an impasse and unilateral implementation as an unfair labour practice simply because it does convert a lockout to a strike. It is one thing to break a strike, another to break a lockout.

This may sound harsh to fans of Montreal (domage!!) and Vancouver (ROFL, sorry Tom) but I would do it if I was the NHL.

Nothing this group of clowns has decided to do would surprise me, including this. I wonder what's in the Manitoba labour code. More lawyers!

I'm kind of surprised the issue hasn't been given any attention in the Canadian media. I've seen stories about the obvious problems in BC and Quebec, but nothing on the other jurisdictions.

Tom

 

[Tom_Benjamin]

That does make sense. If there was good faith negotiations.

If they did manage to impose a CBA, but the 500 top players remained united, do they have to join the new union to cross and play? Could decertified players be picked up as free agents in the new imposed cba?

As I understand the US law, there wouldn't be a new union. It would be a collective bargaining agreement between the NHL and NHLPA that was not collectively bargained. The NHLPA could accept the terms or immediately strike. More likely they will accept the terms until about March 15th. The downside to this strategy by the NHL is that it gives the union the ability to time the work stoppage.

Decertification and there is no imposed CBA.

Tom

 

[Go Flames Go*]

Oh well we don't need the Canadiens or Canucks in the new NHL anyways.

Bring on the replacement players, because the cap is near.

 

[hillbillypriest]

As I understand the US law, there wouldn't be a new union. It would be a collective bargaining agreement between the NHL and NHLPA that was not collectively bargained. The NHLPA could accept the terms or immediately strike. More likely they will accept the terms until about March 15th. The downside to this strategy by the NHL is that it gives the union the ability to time the work stoppage.

Decertification and there is no imposed CBA.

Tom

Tom, I'd like to deal with your last point.

Why would it be inappropriate for the NHL to declare impasse, impose new employment terms as a condition of employment in light of the impasse, and then any player that wants to accept the terms can make a free choice and start working for the employer under the employers terms. That seems to me to be the way most of us deal with our own employees (unless we're in a union). You may say that declaring new work rules after impasse is an unfair practice in collective bargaining, but how unfair should that be perceived to be if the union's response to that is to say - OK - now I'm not a union, I'm some kind of group that is not collectively bargaining but is non theless advising a bunch of people that say they want to have individual rights to negotiate bilaterally with an employer.

I know that decertification is a whole new ball game in terms of the legal environment that it creates to evaluate restrictive work rules (like salary caps). However, from the standpoint of "moral high ground", I don't know why on the one hand some people seem to think that its unfair and inappropriate to bring in replacement players (i.e. invite all comers who are willing to accept the owner's work rules) but that it's OK for players to hold in their back pocket that they will decertify.

Why isn't what's good for the goose, good for the gander? Why isn't all fair in love and war?

HBP

 

[ChemiseBleuHonnete]

Oh well we don't need the Canadiens or Canucks in the new NHL anyways.

Bring on the replacement players, because the cap is near.

 

[me2]

If the player decertify the NHLPA they might well have a strong case against the draft, individual salary restrictions, waivers, trading players, RFA status etc. Decertified they might not be able to challenge the cap though. They might well win UFA status for all but not lift the cap, something I think owners would accept if it came to it.

 

[Tom_Benjamin]

I know that decertification is a whole new ball game in terms of the legal environment that it creates to evaluate restrictive work rules (like salary caps). However, from the standpoint of "moral high ground", I don't know why on the one hand some people seem to think that its unfair and inappropriate to bring in replacement players (i.e. invite all comers who are willing to accept the owner's work rules) but that it's OK for players to hold in their back pocket that they will decertify.

Why isn't what's good for the goose, good for the gander? Why isn't all fair in love and war?

There is no moral high ground. It is a labour dispute. I support the players mostly because I like the way the NHL is structured right now. I hate the NFL and NBA systems. I don't want to see fundamental change in the basic structure. I want the UFA age to stay the same, I think the entry level system is great and in between arbitration is the best solution.

When I used he term "unfair labour practice" I'm talking about something that is specifically written into the labour code or has become defined as an unfair labour practice by a labour relations board in one or more of the provinces. It would be the law defining it as unfair, not me personally. I would not personally define using replacement players as an unfair tactic if the players were on strike. In British Columbia it is. In Ontario, it is not.

(I think it is stupid and unfair to the traditions of the game, but that's a different thing than being unfair.)

In other words, I'm not arguing about whether it should be defined one way or another. I'm wondering whether it is. If we were talking restaurant workers or something in Ontario, would the labour code allow the employer to lock out the union, unilaterally change the agreement, force a strike, and then invite the union members to ignore the strike vote and come back to work? I don't know. I can imagine, however, that being interpreted - and disallowed - as an attempt to break the union in some jurisdictions.

Furthermore, it is one thing to replace workers because they go on strike and you decide to give their jobs to someone else. It is another to replace workers when the strategy only wins if the replacements are very temporary. If the players come back, the move wins. If the players don't, the move loses. The players will certainly see it as an attempt to break the union rather than the strike.

Perhaps it won't matter even if it is defined that way in the Provincial labour code. I think the first part of that battle will be jurisdiction and on that one I think the NHL should prevail because the NHL offices are in New York.

I don't see any moral connection between this and decertification. That's part of the mix, too. Would you expect the players to give it up? I think there will be another legal battle over that one, too, one with very little precedent. I'd expect the NHL to fight decertification, calling it a sham and a mere bargaining technique.

I don't think they can win that one, but it will be funny to watch. On the one hand the players have decertified because the NHL successfully breaks the union, on the other they will fight to keep the broken union from dissolving.

I agree that all is fair in love and war. This is war.

And isn't that stupid? I heard Jim Kelley talking on the radio the other day and he said he thought the NHL had easily the worst ownership group in sports. Replacement players in Manitoba? It's so Mickey mouse, it's funny.

BTW, on further reflection, I think it is more likely that Vancouver and Montreal would sit it out. I don't think the new improved NHL would want to go head to head against the AHL in a market.

Tom

 

[Tom_Benjamin]

If the player decertify the NHLPA they might well have a strong case against the draft, individual salary restrictions, waivers, trading players, RFA status etc. Decertified they might not be able to challenge the cap though. They might well win UFA status for all but not lift the cap, something I think owners would accept if it came to it.

They win it in a slam dunk. The only easy thing about the legal issue is the owners have consistently won in the courts under labour law, the players always win under anti-trust. The players have to choose one or the other.

The owners can't do anything to restrain wages if there is no CBA and no NHLPA.

Tom

 

[codswallop]

There is no moral high ground. It is a labour dispute. I support the players mostly because I like the way the NHL is structured right now. I hate the NFL and NBA systems. I don't want to see fundamental change in the basic structure. I want the UFA age to stay the same, I think the entry level system is great and in between arbitration is the best solution.

When I used he term "unfair labour practice" I'm talking about something that is specifically written into the labour code or has become defined as an unfair labour practice by a labour relations board in one or more of the provinces. It would be the law defining it as unfair, not me personally. I would not personally define using replacement players as an unfair tactic if the players were on strike. In British Columbia it is. In Ontario, it is not.

(I think it is stupid and unfair to the traditions of the game, but that's a different thing than being unfair.)

In other words, I'm not arguing about whether it should be defined one way or another. I'm wondering whether it is. If we were talking restaurant workers or something in Ontario, would the labour code allow the employer to lock out the union, unilaterally change the agreement, force a strike, and then invite the union members to ignore the strike vote and come back to work? I don't know. I can imagine, however, that being interpreted - and disallowed - as an attempt to break the union in some jurisdictions.

Furthermore, it is one thing to replace workers because they go on strike and you decide to give their jobs to someone else. It is another to replace workers when the strategy only wins if the replacements are very temporary. If the players come back, the move wins. If the players don't, the move loses. The players will certainly see it as an attempt to break the union rather than the strike.

Perhaps it won't matter even if it is defined that way in the Provincial labour code. I think the first part of that battle will be jurisdiction and on that one I think the NHL should prevail because the NHL offices are in New York.

I don't see any moral connection between this and decertification. That's part of the mix, too. Would you expect the players to give it up? I think there will be another legal battle over that one, too, one with very little precedent. I'd expect the NHL to fight decertification, calling it a sham and a mere bargaining technique.

I don't think they can win that one, but it will be funny to watch. On the one hand the players have decertified because the NHL successfully breaks the union, on the other they will fight to keep the broken union from dissolving.

I agree that all is fair in love and war. This is war.

And isn't that stupid? I heard Jim Kelley talking on the radio the other day and he said he thought the NHL had easily the worst ownership group in sports. Replacement players in Manitoba? It's so Mickey mouse, it's funny.

BTW, on further reflection, I think it is more likely that Vancouver and Montreal would sit it out. I don't think the new improved NHL would want to go head to head against the AHL in a market.

Tom

Transparency. It's not that hard to see if you know what to look for. (And apparently I have to give subject to subtlety, and that's just sad on more than a few levels).

You're an intelligent man, I've seen it many times. This is not a zero-sum issue. There is no objective way to treat this as one side verses another, that cannot and will not happen. It has to be viewed as a totality.

Personal views on certain subjects I can understand. But please don't treat them as though they are anything other than that. I can site several economic realities that blow many of these "theories" out of the water. They may not be accepted but they are real. And don't believe me, it's common. Consult an outside source.

I've gone into specifics many times in the past, and they never did any good. I won't go into them again (I may be somewhat into redundancy but not that much). Don't expect the circle to continue.

 

[A Good Flying Bird*]

David Pollak is more than likely a union guy. They're at an impasse now. It's that simple. Bring on the scabs!
-HckyFght!

Yeah. Bring on the scabs.
I won't watch a single freakin' minute of echl caliber hockey in NHL uniforms.

But I will watch it when the the NHL players returns and one of those scabs has the misfortune getting called back up to the big show.

 

[Sanderson]

The regular NHL-players wouldn't do anything against replacement players, because over 200 of them are doing exactly what replacement players would do, right now in Europe.

 

[chara]

The regular NHL-players wouldn't do anything against replacement players, because over 200 of them are doing exactly what replacement players would do, right now in Europe.

Yeah, taking jobs away from everyday guys. Interesting, how the referees are without work as well but as a collective whole they chose not to take jobs away from their counterparts in the developmental leagues or in Europe.

 

[chara]

There's no legal impasse if the NHL folds the league and starts anew. No NHL = No NHLPA. The players will play for less than the $1.3M avg that's on the table now.

 

[Digger12]

Yeah. Bring on the scabs.
I won't watch a single freakin' minute of echl caliber hockey in NHL uniforms.

But I will watch it when the the NHL players returns and one of those scabs has the misfortune getting called back up to the big show.

After reading what Lonny Bohonos had to say about the situation, I would say the NHLPA would be viewed as the ultimate hypocrite if they raised one objection to seeing the guys they've current kicked out out of starting jobs in Europe repay the favour.

Saskins showed little remorse for guys like him, so too damn bad if this comes home to roost come January or next October.

 

[dawgbone]

There is no moral high ground. It is a labour dispute. I support the players mostly because I like the way the NHL is structured right now.

You mean where the decision of 1 owner with deep pockets has the ability to send shockwaves throughout the rest of the 29 teams with one signing? It's a terrible structure right now.

I hate the NFL and NBA systems. I don't want to see fundamental change in the basic structure.

Heaven forbid the NHL should have a small market, successful team like say the Packers. I mean, you need to have your perennial doormats who are nothing but a feeder system for the rich teams right? Why have the AHL, when you can nab fully developed players from struggling teams?

I want the UFA age to stay the same, I think the entry level system is great and in between arbitration is the best solution.

I have no qualms about the UFA age, but the entry level system is terrible. These kids, who have not accomplished a thing in the NHL, should not be able to make what equates to the league median in Salary their first year (that's not even including the bonuses).

In between arbitration would be nice... if it was 2 way arbitration. Players should be paid what they are worth... if you are a 40 goal scorer, you should get paid like a 40 goal scorer and can use arbitration to get it. If you are 20 goal scorer paid like a 40 goal scorer, the team should be able to take you to arbitration and get that corrected.

 

[Buffaloed]

If the player decertify the NHLPA they might well have a strong case against the draft, individual salary restrictions, waivers, trading players, RFA status etc. Decertified they might not be able to challenge the cap though. They might well win UFA status for all but not lift the cap, something I think owners would accept if it came to it.

If the NHLPA decertified, the NHL could restructure to become a franchise system such as McDonalds where there are individual owner-operators whose purchasing and sales are strictly controlled through the franchiser, or even Walmart where all the teams would be owned by a single entity, the NHL, with "owners" buying shares and having a specified degree of control based on their investment. Instead of signing with individual teams, players would sign with the NHL and be assigned to franchises based on however the NHL saw fit. The NHL isn't a monopoly, as the NFL was when the NFLPA decertified. There's other pro league options for players so it's likely the NHL would enjoy the same privileges as other franchise operations. In that case, player movement, would simply be like Walmart transferring an employee to another store.

 

[garry1221]

If the NHLPA decertified, the NHL could restructure to become a franchise system such as McDonalds where there are individual owner-operators whose purchasing and sales are strictly controlled through the franchiser, or even Walmart where all the teams would be owned by a single entity, the NHL, with "owners" buying shares and having a specified degree of control based on their investment. Instead of signing with individual teams, players would sign with the NHL and be assigned to franchises based on however the NHL saw fit. The NHL isn't a monopoly, as the NFL was when the NFLPA decertified. There's other pro league options for players so it's likely the NHL would enjoy the same privileges as other franchise operations. In that case, player movement, would simply be like Walmart transferring an employee to another store.

that could, in a way, be interesting. kind of like the proposal here awhile back that had all teams giving the PA 40 mil to divide as they will among the players. however i think what you mentioned about the players signing with the league could prove even better for the owners. The players would have to sign with the league and be distributed so to speak, however the league would be telling the player what his market value is.

We'd see trades based on player value, not monetary value. I could see a situation where a player is making x number of dollars, but is playing under that price, the league could either give him warning ... say if he doesn't start producing then he'll get a cut in pay, or he could be traded for a player or players equalling what the player makes, it would be interesting to say the least.

before anyone says anything about the hypothetical situation, i'd say the league would have to see that the coach was giving adequate ice time for the player for the paycut to take effect, however if the player isn't getting adequate ice time... say he's been pushed back to the 4th line, then his pay isn't cut as he's not being given the chance to do better.

 

[thinkwild]

In between arbitration would be nice... if it was 2 way arbitration. Players should be paid what they are worth... if you are a 40 goal scorer, you should get paid like a 40 goal scorer and can use arbitration to get it. If you are 20 goal scorer paid like a 40 goal scorer, the team should be able to take you to arbitration and get that corrected.

Do you really see this as a big problem? I just dont see it. What does a 40 goal scorer get? Well, it depends on his age I gues right? Presumably if a UFA does this, then tough. What were you thinking signing a long term contract like that?

Which RFA was signed to 40goal scorer contract and then only got 20 goals, and the team still wanted to keep him, but just pay him half?

Bonk in Ottawa was let go. Are we unfairly hampered because we are small market? Is this a sign the league is unfair? Is this a finanicial problem that we cant overcome? We had to let Bonk and Lalime go over money. We couldnt afford to pay them. Nor McEachern before that. Is this a problem that disadvantages us? I fail to see it.

If this happened in Ottawa 2 years ago, you can bet we would have whined just like Edmonton fans if we lost Bonk and Lalime like that. Now we know better