The FAN590: Daly & Saskin in Washington with Mediators - (February 13th, 2005)

[two out of three*]

Is there going to be an announcement today on what went down?

 

[Icey]

Wet-
Isn't it an unfair labor praactice for the employer to contact the employee at all during a lockout?

Not as long as they don't talk about contract negotiations.

 

[RR1107]

http://www.tsn.ca/nhl/news_story.asp?ID=114877&hubName=nhl

There is your "progress" report, Saskin says no progress, and unfair to the process to comment further

 

[transplant99]

Mike Brophy on the Sportsnet panel reported it along with a claim that many players and several teams were responding to that pressure. He said he assumed the players were burning up the phone lines talking to one another so that was why he had been unable to get them on the telephone

That's not a source...thats a fairy tale.

Brophy? You have to be kidding me.

At any rate...there is absolutley ZERO proof that the gag order was lifted so management could pressure players into getting the union to capitilate...which was your original assertion.

Much like your entire theory on the NHL being able to declare impasse. Its bogus.

You have been screaming from the rooftops that they can't doit, yet even veteran NLRB members in the states, ANS labor lawyers in Canada have stated, they just dont know.

 

[Wetcoaster]

Wet-
Isn't it an unfair labor praactice for the employer to contact the employee at all during a lockout?

No it is not that strict. Contact is permitted but it is a mine field because one wrong word or even gesture can result in a complaint. There are literally thousands of these type of complaints.

I worked for a labour law firm before representing employers and particularly multi-employer bargaining - we always told our clients that the best thing to do is avoid any discussion that even touches upon the dispute or negotiations - in fact the best thing to do was not talk at all so they was no chance of he said she said scenario.

 

[Wetcoaster]

That's not a source...thats a fairy tale.

Brophy? You have to be kidding me.

At any rate...there is absolutley ZERO proof that the gag order was lifted so management could pressure players into getting the union to capitilate...which was your original assertion.

Much like your entire theory on the NHL being able to declare impasse. Its bogus.

You have been screaming from the rooftops that they can't doit, yet even veteran NLRB members in the states, ANS labor lawyers in Canada have stated, they just dont know.

You asked for a source, I gave it to you. Brophy is an expert according to SportsNet and he writes for The Hockey News. It seems that qualifies under any reasinable defintion of source for a report.

He reported the pressure on the players to go to Goodenow as a fact, he assumed he could not reach the players because they were burning up the phone lines.

TSN reported:

The league, however, sent out a memo to its 30 teams on Friday releasing the gag order on owners, GMs and team executives, not only allowing them to talk about the lockout to the media but also giving them the green light to reach out to players if they wanted. This would appear to be a move to circumvent the union leaders, hoping GMs could start a groundswell among their players to put pressure on NHLPA executive director Bob Goodenow.

I have never claimed that the HL could not declare an impasse. Clearly they can. However based on case law it will be extremely difficult to get it by the NLRB and that is without considereing the over lay of multiple internation labour law juridictions and the immigration law constraints on work permits and visas to foreign nationals in Canada and the US.

Try to at least get my arguments correct before you criticize something I never said.

 

[SENSible1*]

So you believe Brophy that the owners and GM's are "pressuring the players", but feel his is lying when he states the PA is crumbling, right?

 

[Wetcoaster]

So you believe him that the owners and GM's are "pressuring the players", but feel his is lying when he states the PA is crumbling, right?

Brophy reported the lifting of the gag order and contact with the players to pressure Goodenow as facts, his opinion was this showed the players' resolve weas crumbling. To me (and Bill Watters and Nick Kypreos) it seems to show the opposite. I accepted the facts (as they have been reported elsewhere as well) and discounted his opinion. YMMV.

 

[Wetcoaster]

So, just so we're clear, you'e saying it's true because a guy on Sportsnet believes it might be true because it would explain why he couldn't get a hold of some of his sources?
I'm not a labor attorney, but I doubt that would hold up in front of the NLRB.

He reported the lifting of the gag order and pressure from ownership on the players in turn to pressure Goodenow as a fact.

The TSN report suggests that is the reason for the gag order being lifted.

As well as intent the NLRB will be concerned with actual conduct. However if you have owners and GM's contacting numerous players what do you put the chance at that at least one or more will do or say something that the NLRB could construe as an unfair labour practise - remember they have turned GM's like Clarke ansd Milbury loose as well. This area as i am sure you know is aminefiled whee one slight mistep gets you blown up.

That is why I have concluded that the NHL has given up declaration of impasse as aviable option or strategy. An unfair labour practise motion really only has any effect of the impasse decalration - it is otherwise worth an admonition from the NLRB to go forth and sin no more as I understand the consequences.

 

[Jarqui]

No it is not that strict. Contact is permitted but it is a mine field because one wrong word or even gesture can result in a complaint. There are literally thousands of these type of complaints.

I worked for a labour law firm before representing employers and particularly multi-employer bargaining - we always told our clients that the best thing to do is avoid any discussion that even touches upon the dispute or negotiations - in fact the best thing to do was not talk at all so they was no chance of he said she said scenario.

For the benefit of others, these are almost insanely hairtrigger sensitive times when you have a labor situation like this.

The Walmart store was unionized after 79% of employees voted it down because management said "No comment" when they were asked if the store would close if they elected union representation. It was the change in management's usually open behaviour with their employees that nailed them. I'm sure their lawyers had instructed them not to talk about it and trying to follow their lawyers advice, it sunk them.

The best bet in these circumstances is to avoid any chance of wrong doing by avoiding being put in a position that could be misconstrued as influencing the process. Yesterday, by stupidly lifting the gag order, Bettman put the NHL at some risk in my opinion. There was already plenty of pressure on the situation.

 

[Wetcoaster]

I am with you here...I think some pro-player posters are coming to a realization that an impasse may be tried (successful or not) and they don't like it. I think the NHL has met all of the legal requirements of an impasse at this point in time. Whether you agree with the NHL or not doesn't really matter as they will do what they think is best for the league (complications or not i.e., immigration or what not).

NO ONE know how this is all going to work out and to ASSUME anything on how the courts or anyone else will treat this is completely absurd! You can't really compare this dispute with any other league and know what will happen...maybe the NHL wins their impasse or not I think some posters don't like that this will not turn out how they would like...we don't have control and we will all just have to wait and see.

On Friday Bill Daly was on The Score for an interview and stated unequivocally that the NHL is prepared to move off linkage so that any cap would not necessarily be linked to revenues.

That pretty much puts paid to being able to maintain a bargaining impasse in fact. By indicating you are prepared to make further concessions that means there is no impasse - the negotiations continue.

That is why impasse declarations are so difficult to maintain and get ex post facto approval from the NLRB. They are not impossible but they are difficult as can be seen from the case law. According to one former NLRB member, less than 1 in 10 impasse declarations are actually approved.

 

[jfont]

anymore eklund reference will be deleted...

 

[Quantas]

On Friday Bill Daly was on The Score for an interview and stated unequivocally that the NHL is prepared to move off linkage so that any cap would not necessarily be linked to revenues.

That pretty much puts paid to being able to maintain a bargaining impasse in fact. By indicating you are prepared to make further concessions that means there is no impasse - the negotiations continue.

That is why impasse declarations are so difficult to maintain and get ex post facto approval from the NLRB. They are not impossible but they are difficult as can be seen from the case law. According to one former NLRB member, less than 1 in 10 impasse declarations are actually approved.

Except the salary cap is still the stumbling block. The NHL may have moved off the linkage idea (something which makes no sense to me seeing as how revenues are guaranteed to drop for the foreseeable future, however that's a discussion for another day) but until the NHLPA tables a proposal which includes a salary cap or even entertains disccusions of one, an impass is still a card that can be played (whether the NHL would be successful or not going for it...who knows)

 

[Donnie D]

NO ONE know how this is all going to work out and to ASSUME anything on how the courts or anyone else will treat this is completely absurd! You can't really compare this dispute with any other league and know what will happen...maybe the NHL wins their impasse or not I think some posters don't like that this will not turn out how they would like...we don't have control and we will all just have to wait and see.

1000% correct. This is an area with little history and so how a judge rules may depend upon his or her political leanings, what side of the bed that got up on or any other factor. There is a false belief that the law is black and white. It isn't and different judges will rule differently.

That is why I believe that the NHL wants a negotiated agreement. They have certainty. If they go into the courts they could end up with a home run or strike out. It is going to be a risk for the players association too. It could take 2 -3 years to exhaust appeals. That's probably too risky for either side especially for the players who would be giving up 2 or 3 years worth of salary on the hope that the NHL would lose. (And if they did lose, they would go bankrupt so the players association would still have trouble collecting.). But that's not to say that they wouldn't start down that path and I would be shocked if they don't. But just because they declare an impass and begin to implement and court cases start to fly doesn't mean that the 2 parties won't come to some agreement down the road and terminate their legal proceedings.

 

[Jaded-Fan]

Remember that most if not all of the NLRB will be Bush appointees. Does anyone know btw if there are any lifetime or similar appointments so that some Clinton appointees will have held over? In any event, as I said most should be Bush appointees, no way to predict exactly how they would rule, but I would be very nervous if I were the NHLPA if I was relying on a Bush NLRB for a pro-labor ruling.

 

[thinkwild]

The hope against all reason is so heartening.

This meeting today seems to have been just part of the dastardly "process" to meet the paperwork requirements.

To date, the owners, despite the many who claimed were only putting forth a hard cap as a hardline open position, or the triggers were negotiable, or would eventually compromise on a soft cap that the vast majority of fans think is right, have shown no evidence of this at all.

I am with you here...I think some pro-player posters are coming to a realization that an impasse may be tried (successful or not) and they don't like it. I think the NHL has met all of the legal requirements of an impasse at this point in time. Whether you agree with the NHL or not doesn't really matter as they will do what they think is best for the league (complications or not i.e., immigration or what not).

NO ONE know how this is all going to work out and to ASSUME anything on how the courts or anyone else will treat this is completely absurd! You can't really compare this dispute with any other league and know what will happen...maybe the NHL wins their impasse or not I think some posters don't like that this will not turn out how they would like...we don't have control and we will all just have to wait and see.

I'm coming to that realization, and I dont like it at all. And I cant see how any fan possibly could. To get a system not one economist has publicly supported, that the owners and GMs themselves have stated they dont need, just to play out a hardball process, to what end for fans? Some mythical everyone's a winner land?

I dont know that the end of this process is necessarily impasse, but the lawyers are inlvoved, they are going to put to test all the leverage, and we are going to have to wait it out to see who wins. As we all knew would happen if the owners pushed forward on this not-the-only-option path. Hope everyone's happy.

Gary Bettman, you sir had an option.

 

[Wetcoaster]

Remember that most if not all of the NLRB will be Bush appointees. Does anyone know btw if there are any lifetime or similar appointments so that some Clinton appointees will have held over? In any event, as I said most should be Bush appointees, no way to predict exactly how they would rule, but I would be very nervous if I were the NHLPA if I was relying on a Bush NLRB for a pro-labor ruling.

The NLRB appointments from Bush have been in place since 2002. Under US federal law the President appoints 3 members and the opposition Democrats appoint 2 members. They have to be confirmed by the Senate - the US power to advise and consent.

According to the statistics I have seen, the approval of bargaining impasses is holding steady at about 1 in 10 by the NLRB over the past decade. You also have to remember that the NLRB cannot just change the case law at their whim, there are court decisions from above them that limit what they can do and if they exceed those limits they will be reversed upon appeal. getting a bargaining impasse by the NLRB is not an easy thing because the Board promotes collectively bargained agreements wherever possible.

There may be areas that the NLRB will change some things but from what I have read impasse declarations are unlikey to be one of the subjects.

 

[Wetcoaster]

Except the salary cap is still the stumbling block. The NHL may have moved off the linkage idea (something which makes no sense to me seeing as how revenues are guaranteed to drop for the foreseeable future, however that's a discussion for another day) but until the NHLPA tables a proposal which includes a salary cap or even entertains disccusions of one, an impass is still a card that can be played (whether the NHL would be successful or not going for it...who knows)

Actually the smart thing for the NHLPA to do right now is nothing - the NHL has publicly moved off a formerly held point. I suspect that the NHLPA will want to see how the concession works out in a proposal. At this point the best approach for the union is wait and see what form the removal of linkage will take.

As things stand right now there is no bargaining impasse IMHO and if the NHL were to declare one it would be very difficult to get past the NLRB as they have indicated flexibility and movement on a previously hard held position. It seems to me that the NHL would now have to at least make one more proposal to see how the NHLPA would respond.

 

[CarlRacki]

The NLRB appointments from Bush have been in place since 2002. Under US federal law the President appoints 3 members and the opposition Democrats appoint 2 members. They have to be confirmed by the Senate - the US power to advise and consent.

According to the statistics I have seen, the approval of bargaining impasses is holding steady at about 1 in 10 by the NLRB over the past decade. You also have to remember that the NLRB cannot just change the case law at their whim, there are court decisions from above them that limit what they can do and if they exceed those limits they will be reversed upon appeal. getting a bargaining impasse by the NLRB is not an easy thing because the Board promotes collectively bargained agreements wherever possible.

There may be areas that the NLRB will change some things but from what I have read impasse declarations are unlikey to be one of the subjects.

FWIW, there currently are three seated members of the NLRB and two vacant positions. Two of the three are Bush appointees. The third was initially appointed by Clinton then re-appointed by Bush.

All five seats, by the way, are appointed by the President. I don't know where you're getting this 3 and 2 deal, but it's not correct.

 

[Wetcoaster]

FWIW, there currently are three seated members of the NLRB and two vacant positions. Two of the three are Bush appointees. The third was initially appointed by Clinton then re-appointed by Bush.

All five seats, by the way, are appointed by the President. I don't know where you're getting this 3 and 2 deal, but it's not correct.

Under federal law, the party of the President controls three of the five seats on the Board. The remaining two seats are held by members of the opposition party. The slate of nominees was finally approved by the Senate and is now working on the backlog of cases that has developed over the past year. The backlog itself is one of the problems that labor lawyers hope the new Board will remedy. Since the nomination and confirmation process took so long, many major cases remained pending while the recess appointees declined to determine significant issues.

http://www.ballardspahr.com/press/article.asp?ID=517

I understand from a friend of mine who I spoke with in late Janauary and who is labour lawyer in DC (works with a US Senator) that the NLRB by custom does not usually make major rulings without a full bank or at least a three member majority on any major decsion. He tells me that currently there are 2 Republicans and one Democrat sitting on the Board and that one of the Republican appointments is due to expire this summer.

He tells me that a couple of Bush's intended appointments (one was Gene Scalia?) have been withdrawn because they would not likely get Senate approval.

He also said the NLRB General Counsel's term is about to expire and that usually means a hiatus in any important rulings while the new counsel is appointed and gets up to speed. He said that Bush has not pushed hard on domestic labour matters as he has been turning his attention to other things

I am no expert on US politics but this all seems to indicate to me that there is unlikely to be any major shifts in position from the NLRB for the foreseeable future.

 

[likea]

Actually the smart thing for the NHLPA to do right now is nothing - the NHL has publicly moved off a formerly held point. I suspect that the NHLPA will want to see how the concession works out in a proposal. At this point the best approach for the union is wait and see what form the removal of linkage will take.

As things stand right now there is no bargaining impasse IMHO and if the NHL were to declare one it would be very difficult to get past the NLRB as they have indicated flexibility and movement on a previously hard held position. It seems to me that the NHL would now have to at least make one more proposal to see how the NHLPA would respond.

could it not be looked at as an impasse..just on 2 different things

either way the NHLPA will not discuss a cap or linkage

sounds like an impasse to me

 

[vanlady]

Remember that most if not all of the NLRB will be Bush appointees. Does anyone know btw if there are any lifetime or similar appointments so that some Clinton appointees will have held over? In any event, as I said most should be Bush appointees, no way to predict exactly how they would rule, but I would be very nervous if I were the NHLPA if I was relying on a Bush NLRB for a pro-labor ruling.

The NLRB is made up of 5 appointees, they must be split 3 and 2 along party lines, no party can have a monopoly on the board. Lieberman has been on the board for years and has crushed more impasse hopes than almost anyone. The current Bush NLRB has squashed the last 5 impasses in front of them. They have to be careful to balance the Supreme Court decisions on this subject, with there party policies. They just can't make it up as they go.

By the way, the Mediation Service does not order both sides to Washington for fun, one side is screaming unfair labor, or something similar, in most cases this is not a good sign for the employer. The mediators in the US do not have the power to order them to Washington other wise. Remember that if they try impasse the investigation is sped up, simply because the Mediation files serve as the history of the negotiations.

 

[vanlady]

CTV is reporting GM's and owners are directly contacting players to pressure them to accept a cap. NO NO. That is coersion and a 8(a)(1) violation.

 

[SuperUnknown]

CTV is reporting GM's and owners are directly contacting players to pressure them to accept a cap. NO NO. That is coersion and a 8(a)(1) violation.

Quick, report this to your deputy!

Edit: Is this legal mumbo jumbo really relevant? I mean, the owners may be liable to whatever is written in the law, but can we really fault them for trying to save the season by calling the players and explaining to them what's going on?

 

[Wetcoaster]

could it not be looked at as an impasse..just on 2 different things

either way the NHLPA will not discuss a cap or linkage

sounds like an impasse to me

No, if there is any hint of possible movement you do not have an impasse.

At this point the NHL does not know whether or not the NHLPA will accept a non-linkage offer. That is not good enough for an impasse.