Tom_Benjamin said:
I think this post was mostly wishful thinking. I don't think any of it holds together. What is the relevance?
Tee hee...Are you just trying to bait me to make sure I'm motivated to respond. Just a moment, I'm going to strap on my debating boots and start flinging some muck...
Tom_Benjamin said:
Even if they considered it, they would have to consider it in light of the fact that it is only advantageous to them because the NHL is illegally organised, a clear violation of anti-trust law.
Anti-trust law is only half the law and it doesn't apply until it applies. Mores the point, after Brown vs. Pro Football, which went all the way to the US supreme court, it's become pretty clear that the collective bargaining relationship does not end between the parties at the point that the union stops consenting to the terms or even at impasse, it only ends after a very prolonged impasse - or - when the union decides to take the step of actually decertifying itself as a collective bargaining agent. As to your proposition that the NHL is illegally organised, I'm afraid that I have to say that you are quite simply WRONG here. In the years following the passage of the Sherman Act, the Courts evolved the non-statutory labor exemption from the Sherman Act to facilitate collective bargaining. Before this principle evolved, union association for the purposes of facilitating collective bargaining was challenged as being an illegal violation of the Sherman Act. Over time and decisions, the U.S. courts have devised the either/or treatment of employer - employee relationships. That is, at any given time the employers and employees are either in a collective bargaining relationship or they are not, in which case (and only in that case) the Sherman Act can apply. So I just don't accept your proposition that the NHL is "illegally organized". I call BS.
Tom_Benjamin said:
The players don't have the hammer because they can decertify and torpedo the league (or at least the league as we know it.) They have the hammer because the NHL is illegally organised. They are supposed to be competing businesses and they restrict the competition for labour. They can't do that without the consent of the employees. It is against the law.
See above.
Tom_Benjamin said:
The gasfitter does have the same recourse. It just doesn't have the same effect because his employer isn't so obviously in violation of anti-trust law.
The point in my post was that NLRB will take into account factors like the type of employees they're dealing with in a particular case and the economic state of the employer. The NHL has evidence of their economic state. The NHLPA has not provided evidence to show that the league is in good shape (just saying "we don't believe you" doesn't count). Administrative law tribunals take evidence, not hearsay, into account. Unlike the gas fitters union, there is no potential for any NHL players to be seriously economically disadvantaged if the league were to impose a multi-million dollar team salary cap as a condition to their willingness to continue the business relationship with the employees. Even then, the players don't lose any ability to choose, they just don't have the same deal as starting point for further negotiations that they had at the time of the CBA's expiry. So what then? The players as a group have to decide whether to strike against the new terms of employment that's on offer for them. If they decide to strike, however, at least at this point, individuals in the union that that want to defy the position of the union have the ability to exercise a free choice to do so. Likewise Hockey players not in the union get the chance to make their choice to play hockey under the league's rules if they wish. Most importantly, the arena staff and other lowly supporting infrastructure of the game get to get back to work. The NLRB won't think about these people when considering the effects of allowing the league to adopt new work rules, I sure doubt it.
Tom_Benjamin said:
That's why I don't think the NHL would have zero chance against a decertification vote. It will be the NHLPA who will have to argue it in court. They NHL will claim the players are still really acting in concert and note their opponent. They will say the union is using the advantage the anti-trust legislation gives them as a bargaining tactic. That is a position that can be justified. I do think the players will prevail on that one though. All Goodenow will have to do is show that the majority of players could reasonably believe they would be better off without a collective agreement than the agreement being foisted upon them.
Here is where we almost (but not quite) agree. I guess I agree that the NHL would fight a decertification on the grounds that it was just a negotiating tactic and that the NHLPA is still effectively advising players on a collective negotiation approach. However, my understanding is that if the NHLPA truly stepped completely aside and the players really did negotiate their contracts with their employers on a bilateral basis, then decertification would end the collective bargaining relationship from that point on, and the Sherman Act would come fully into play (but only in respect of the U.S. teams - an interesting wrinkle to ponder if it ever came to pass). The big hurdle, however, will be for Goodenow to actually get the players to pull the plug on the union. The NBA players were not willing to take this step. This is because the stars and superstars that would benefit the most from true free agency are in the minority in the union. The rest of the group would have to ask themselves whether a life litterally on their own against the NHL and the job competition from the universe of hockey players who's wildest dream is to play hockey in the NHL comes right up to bear. Will the rank and file player really feel that a league with a cap is worse than full on competition? I say not (p.s. I'd actually like to be wrong on this, because I believe full on job competition would cause salary deflation, cap or no, but that's another thread).
Tom_Benjamin said:
I doubt this very much. Levitt did not see anyone's books and the URO's don't match anyone's books. Unless the NHL is prepared to table the audited books of the actual teams, it doesn't fly. It isn't evidence of anything.
Just exactly what is the NHLPA's evidence that the league IS making money? All I hear is the vague assertion that the league MUST be making money, otherwise the owners wouldn't have entered into such fat contracts as they did. This is not evidence. Whether you agree with Levitt or not (and you obviously don't) the NLRB as an administrative tribunal will, by definition, accord more weight to a report supported by an eminently credible source more than they will the NHLPA's equivalent - which, to my knowledge, doesn't exist at all.
Tom_Benjamin said:
And even if the teams table real books that show real losses, it isn't evidence that the only way to fix the problem is by linking payroll to an artificially defined "revenue" number. The NHL does not have revenues. Teams have revenues.
And yet the league and the NHLPA negotiate a collective agreement rather than teams and Team PA's. Odd, don't you think?
Tom_Benjamin said:
Plus, the size of the losses won't even come into it. The only real question is whether the NHL has bargained in good faith. They could be making money hand over fist and they could win on that point. They can have large losses and lose. So far the only specific offer is a wage cut that averages $500,000 an employee. If that's the best they can claim is bargaining in good faith, I think they will have trouble making it stick.
The NHL's position is that they, as a league, need a new relationship with their employees or else they are not prepared to continue to operate. This has been clearly articulated as the basis of the league's postion for more than five years. The NLRB can't ignore this or else they will look like fools. If they declare the new work rules imposed after impasse by the league invalid, the next thing that happens after the ruling is nothing. That is, if the old CBA terms are imposed back on the league as the basis for future discussions, the NHL will re-impose the lockout, and the actual state of impasse between the parties will continue.
Tom_Benjamin said:
Why? This whole idea of treating players as if they are different than any other worker because they make more or because they can find alternate employment in Europe defeats the whole point of the choice made by the players. The players have to choose between the rules set by the labour law or the anti-trust law.
By having a union and a CBA, they choose to abide by the labour law rather than exercise their rights under anti-trust law. Then when they attempt to use the labour law they find the rules for their members are different than the rules for everyone else? That can't be right. If it turns out to be right, the players are crazy not to decertify. They get the benefits of one or the other, not both. You can't deny them the protections in the labour law by introducing irrelevancies like salary levels, the Levitt report, or Europe. You can't interpret "bargaining in good faith" differently because we are dealing with hockey players.
You obviously didn't get my point at all. I was not trying to suggest that the labor law would treat them different because they are hockey players. I was trying to suggest that the NLRB would take into account the demonstrated actions of a the players when assessing the reasonabless of the impasse situation. The circumstance we're dealing with is that the NHL has communicated a fundamental position for a long time and is apparently determined to stick to it until the premise of their fundamental position is accepted. If the players don't ever make a move towards accepting the cap, the fact that the NHL has not moved off this well communicated and well defended (in my view, see above regarding my view on the role of Leavitt) should not, of itself, be regarded as bad faith bargaining. The fact that players willingly accept jobs in Europe for compensation that, if offered by the NHL, would surely be lower than the cap, is, in my view, a factor that can be pointed to to butress the NHL's claim. Similarly, the fact that NHL players with the economic means to "ride out" a strike are willing to take jobs away from players outside of the NHL is something that the NLRB should take into account when considering whether to accept the impasse declaration and thereby allow the NHL to impose new work rules. If the NHLPA decides at that point that there is no percentage in continuing to exist as a union, then so be it too. Decertify, if you must, and then the rules of the game change again, and the NLRB is no longer even involved.
Tom_Benjamin said:
Of course they are. Lonnie Bohonos is ready to play and he wasn't an NHL player when he was 25. He sure isn't an NHL player at age 31. I agree that the best players in the AHL are pretty much as good as the worst players in the NHL. But there is a big gap between the best AHL players and the worst. And there is a huge gap between the average AHL player and the average NHL player.
The gap between the best ECHL players and the worst AHL players is fairly small, but again there is a huge difference between the average ECHL player and the average AHL players. I've had the chance to read Canuck scouting reports and "ECHL player" is a damning indictment. It meant "If this guy can play in the NHL, I'll eat my hat. Write him off." Most decent college players can make the ECHL. A lot of Canadian College players play in the ECHL. They are miles from being NHL quality.
This is the biggest problem with any replacement player scheme. Where do the players come from? Every NHL team is contractually obligated to place XX players with their AHL team. They all have 40 or 50 players with an NHL contract. If they take contracted players from the AHL, they will have to replace them. How will the affiliates feel about their NHL parent inviting their players to cross an NHL picket line and replacing them with ECHL players? If half the AHL players take up on the NHL offer, what does the AHL do? The AHL has to take on half the ECHL? Their fans would love that.
The NFL was going to go on forever with replacement players if the strike had not been broken and they were not taking players away from their minor league teams. The NHL can't go on forever with replacements. Unless they break the strike, the league would be Mickey Mouse for years because it takes years to develop players.
In that league? I've seen Lonnie Bohonos play. I wouldn't miss them either. I'd be quite happy to see them pass.
I don't raise Lonnie Bohonos situation to suggest that the quality of play with replacement players would be acceptable for a major league. I only raised him to discuss the overall context of fairness and public interest results that the NLRB would consider at the point it has to evaluate the effects of an NHL impasse declaration. The thing that the NLRB WON'T do is to consider whether the quality of play will be "acceptable" or "up to standard" if it permits the impasse declaration and opens the door to replacement players. All the NLRB effectively does initially when it decides to accept the impasse is to decide whether the stoppage in work should continue as a lockout or as a strike. However, once it's a strike, it's in the NHLPA player's hands, both collectively and as individuals, to determine what happens next - decertify, stay on strike, whatever.
Over to you Tom...
HBP