Could the owners just "lift" the lockout in January?

[Egil]

Would it not be possible for the owners to just lift the lockout at their "drop dead" date, play a 40 or so game season (paying the players the pro-rated wages), get ALL the playoff revenue, and then repeat this process next year, forcing the players to strike (which they claim they won't do)?

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[djhn579]

Would it not be possible for the owners to just lift the lockout at their "drop dead" date, play a 40 or so game season (paying the players the pro-rated wages), get ALL the playoff revenue, and then repeat this process next year, forcing the players to strike (which they claim they won't do)?

That would seriously hurt their position if they do try to declare impasse.

Also, doing something like that would probably swing a lot of the support the owners now have to the NHLPA.

 

[GabbyDugan]

It's been a very longtime since I took Labour Relations in college. However, I can't think of any legal way to "lift" a lockout without either a ruling from a judge or legislative body, or else a replacement for the previous Collective Agreement...

Can anyone cite a precedenet where an employer anywhere in the democratic world simply "lifted" a lockout so that it could resume doing business? This would probably be considered to be in violation of laws like Taft-Hartley, etc....

 

[Egil]

That would seriously hurt their position if they do try to declare impasse.

Also, doing something like that would probably swing a lot of the support the owners now have to the NHLPA.

I disagree. Simply put, the Owners can say "We still want a cap, but, in the interests of preserving the season (and the awarding of the Stanley cup), we will lift the lockout to play an abridged season. It forces the players to either play, or strike (which they claim that they would not do).

The legal issues involved are completely unknown to me, but didn't the baseball players stop their strike before a new CBA was reached back in 1994?

 

[GKJ]

Why would the players even want to strike to begin with?

 

[SENSible1*]

Why would the players even want to strike to begin with?

To return now the owners would have to use the old CBA. There is ZERO chance of that happening.

 

[Benji Frank]

Would it not be possible for the owners to just lift the lockout at their "drop dead" date, play a 40 or so game season (paying the players the pro-rated wages), get ALL the playoff revenue, and then repeat this process next year, forcing the players to strike (which they claim they won't do)?

The players said at the beginning of the year they wouldn't strike in hopes the owners would negotiate and not lock them out. Now, I bet it's a different tune.... If the owners were to lift the lockout now, the players would likely play the bulk of whatever schedule is created and then on April 2nd or the day after whenever their second last payday is deemed to be paid would walk so the owners won't get any playoff revenue. This would leave the NHL with such a hige black eye, noone would benefit.....

 

[Egil]

To return now the owners would have to use the old CBA. There is ZERO chance of that happening.

Why not? By lowering the number of regular season games (and thereby the amount they have to pay the players), while keeping ALL of the playoff revenue, they could make money. Lets say the owners lose $200 million for a season (including playoffs). Lets say the playoffs net the owner a profit of $500 Million total, and they lose $700 Mil during the regular season (when you factor in playoff gates, and TV deals, I think this is a decent estimate). Now, by halving the season, you only lose $350 mil, but still make the $500 Mil in the playoffs. Bingo, a $200 mil loss has just turned into a $150 Mil profit. So why not do it?

The players striking right before the playoffs IS a valid concern, but that gives such horrific press to the players that I don't THINK they would do it (but you never know).

 

[djhn579]

I disagree. Simply put, the Owners can say "We still want a cap, but, in the interests of preserving the season (and the awarding of the Stanley cup), we will lift the lockout to play an abridged season. It forces the players to either play, or strike (which they claim that they would not do).

The legal issues involved are completely unknown to me, but didn't the baseball players stop their strike before a new CBA was reached back in 1994?

I'm looking at it from the perspective of the owners saying we are losing too much money and can no longer play under the existing CBA, and need a CBA that links salaries to revenues. If they lift the lockout, they will be playing under the old CBA and a judge could look at that and say that your not at impasse since you did play again under the old CBA. I'm not a lawyer, but from what I was reading, I could see this being a problem.

 

[Egil]

If the goal is impasse, then this is not a viable solution. However, the Impasse solution has mainly been trumpeted by the media, and is not guaranteed to work no matter what the NHL does.

 

[GabbyDugan]

If the goal is impasse, then this is not a viable solution. However, the Impasse solution has mainly been trumpeted by the media, and is not guaranteed to work no matter what the NHL does.

The NHL also denies an impasse is their objective, so who can say for sure? I would have thought Gary Bettman, Bob Goodenow ,and the media would have run out of garden paths to lead us all down by now, but such is not the case

I really would like someone to find evidence to the contrary, but it strikes me as totally unrealistic to think that the NHL can "lift" a lockout for any reason at all. When an expired CBA results in a lockout or strike, then very serious legal issues are brought into play, and these issues span jurisdictions in two nations and several states and provinces. The party that calls the lockout or strike can't simply "lift" this kind of measure when it is economically advantageous to do so.

 

[Kickabrat]

Would it not be possible for the owners to just lift the lockout at their "drop dead" date, play a 40 or so game season (paying the players the pro-rated wages), get ALL the playoff revenue, and then repeat this process next year, forcing the players to strike (which they claim they won't do)?

NO. The NHL cannot "lift" its lockout and unilaterally implement the old CBA (if that is what they actually wanted, which would probably mean hell froze over).

First and foremost, the old CBA expired September 15, 2004. IT IS DEAD, DECEASED, GONE, SAYONARA, ADIOS. It cannot be resuscitated unless both parties agree, and then, technically, they would sign a new CBA with the same terms and conditions as the old one, but it would be a new CBA, with new expiry dates, etc. As of today, there can be no games played because there are no labor rules to play under. If the NHL wants to play hockey they have to negotiate a CBA with the PA (or go the impasse route and that's another thread altogether).

And why would the NHL go back to the old CBA when the NHLPA has already submitted proposals that are more favourable to the owners than the old CBA. If the NHL absolutely wants to play hockey, they would accept the players' proposal before they went back to the old CBA. And why would the NHLPA sign an agreement that would last all of 6-months so the NHL could start the whole thing over again next year?

 

[PecaFan]

The players wouldn't strike next year, because they know the current CBA is gold for them. They'd love nothing better than to extend the current deal and keep rolling up to the feed trough.

More interesting would be what they'd do at playoff time. No more paycheques then, so *that* would be the time they'd strike. Some fans would probably car bomb them if they did that though. (only half joking on that, some folks take this stuff way too seriously)

 

[Tom_Benjamin]

It's been a very longtime since I took Labour Relations in college. However, I can't think of any legal way to "lift" a lockout without either a ruling from a judge or legislative body, or else a replacement for the previous Collective Agreement...

I don't think there is anything in the labour law that prevents the owners from playing without a CBA or making a deal with the NHLPA to play under the old CBA for the rest of the season. I'm sure it has happened. Strikers also will sometimes return to work as part of a negotiating strategy. Why do you think it would be against the law?

I think it makes sense as a strategy if the NHL wants to get to impasse next fall. It doesn't make sense as a strategy if the NHL just plans to wait things out. At this point I don't expect either the players or the owners to cave on the larger issue.

If the owners have a real plan, I think the plan probably does involve lifting the lockout and playing the second half of the season. That solves so many problems for them and costs them very little. In any case, the owners will have to lift the lockout after the season is cancelled to make qualifying offers unless they want all RFAs to become free agents.

If this is the owner plan - do nothing while they hope the players break - then Bettman truly is a mad man and we are watching the NHL implode. We will be right here with nothing changed this time next year.

The union might decertify if it gets that far.

Tom

 

[Sanderson]

I don't think it would be possible. You need a CBA, because some rules are against a free market system, which you would have without a CBA. Players could sue in basically every regard.

If they would play under the old CBA, the players couldn't strike right before the playoffs, because it is forbidden.
The owners would never do this though, because it is against everything they are fighting for.

 

[GabbyDugan]

I don't think there is anything in the labour law that prevents the owners from playing without a CBA or making a deal with the NHLPA to play under the old CBA for the rest of the season. I'm sure it has happened. Strikers also will sometimes return to work as part of a negotiating strategy. Why do you think it would be against the law?
Tom

True enough that there are situations where workers have used rotating strikes as a negotiation tactic. Obviously such action is legal under Canadian Federal labour laws, because PSAC has used such a strategy in recent months. I'm just not aware of rotating lockouts of any kind.

I don't think I assumed "lifting" the lockout was either legal or illegal. I'm just wondering if there is indeed a precedent, a case, a legal judgement, an injunction, an arbitration ruling, or any example where a lockout has been "lifted". I can find no reference to "lifting" a lockout in any of the labour relations material at my disposal. When I called the professor who instructed the last course I took , she told me consultations start at $340/hour....

I'm not sure what kinds of tricks Gary Bettman and those faceless legal advisers and management consultants behind the scenes have up their sleeves. I'm just not seeing this "lifting" of the lockout as a practical strategy, but it's slightly intriguing nevertheless.

 

[YellHockey*]

NO. The NHL cannot "lift" its lockout and unilaterally implement the old CBA (if that is what they actually wanted, which would probably mean hell froze over).

First and foremost, the old CBA expired September 15, 2004. IT IS DEAD, DECEASED, GONE, SAYONARA, ADIOS. It cannot be resuscitated unless both parties agree, and then, technically, they would sign a new CBA with the same terms and conditions as the old one, but it would be a new CBA, with new expiry dates, etc. As of today, there can be no games played because there are no labor rules to play under. If the NHL wants to play hockey they have to negotiate a CBA with the PA (or go the impasse route and that's another thread altogether).

Garbage.

Plenty of organizations continue to work under expired CBA's. If you don't have a new CBA the status quo remains but employees can strike or owners can have a lockout. There are plenty of federal government departments in Canada that have continued to work under the rules of an expired CBA for as long as a year.

 

[GabbyDugan]

Garbage.

Plenty of organizations continue to work under expired CBA's. If you don't have a new CBA the status quo remains but employees can strike or owners can have a lockout. There are plenty of federal government departments in Canada that have continued to work under the rules of an expired CBA for as long as a year.

....except a lockout legally recognized in every legal jurisdiction in Canada and the United States is now in place....once a lockout or strike is declared, expired really means expired, does it not?

 

[Tom_Benjamin]

....except a lockout legally recognized in every legal jurisdiction in Canada and the United States is now in place....once a lockout or strike is declared, expired really means expired, does it not?

Why? I don't get it. The owners can do whatever they want in this respect. They did not have to lockout the players and they don't have to keep them locked out. There is no rule that says they can't stop a strike or lockout even though no agreement has been reached.

Why would any law discourage or prevent this? The public interest is always in settling a labour dispute. If lifting a lockout gets the parties closer, why would labour law in any jurisdiction prevent it? If lifting a lockout gives the owners an advantage in a dispute, they can lift it. Players can use rotating strikes, too. It is the same thing.

The owners usually go to a lockout to prevent rotating strikes and workers usually strike if they don't like an on again off again lockout.

Tom

 

[mudcrutch79]

As long as Tom is reading this thread-do the labour laws in Ontario and BC apply to this lockout if the union isn't certifed there? I've asked a labour law prof who doesn't know, a law student writing a paper on the lockout who doesn't know and I have no idea. Reading the Acts, it seems like they apply to union certified under the Act. I have a hard time seeing how the NHLPA could be certified as a bargaining unit in BC, unless the Canucks are a separate unit, but that seems unlikely.

The reason I'm asking is in relation to using replacement workers; some places allow them, others don't.

 

[GabbyDugan]

So a lockout or strike has no irreversable legal consequences when a Collective Bargaining Agreement contract expires ? The party that calls for a strike or lockout can go back any time it chooses and "undo" the strike or lockout?

 

[Tom_Benjamin]

As long as Tom is reading this thread-do the labour laws in Ontario and BC apply to this lockout if the union isn't certifed there?

I think they must apply. The first story that I got about the lockout being on for sure was when the Canucks provided the required 72 hours notice to the BC Labour Relations Board.

I don't really take the idea of replacements too seriously. Even if there is a ruling that places jurisdiction in the US courts, the owners still have to get a favourable impasse ruling to convert the lockout to a strike. Then the players would have to cooperate by going on strike right away when they can control the timing of the work stoppages to prevent the use of replacements.

MLB had the advantage of not having to convert the lockout to a strike - it was already a strike - but both Toronto and Montreal planned to play their games out of their spring training facilities because the Ontario and Quebec laws both prohibited the use of replacement workers at that time.

I don't think either impasse or player cooperation on the date of the strike is very likely. I think the players decertification is the most likely change we will see if the dispute drags into a second season. Since the players would probably immediately contract with Goodenow, Saskin and Associates to manage their pension fund and licensing monies, the owners would probably fight decertification in court as a mere bargaining ploy.

Tom

 

[Tom_Benjamin]

So a lockout or strike has no irreversable legal consequences when a Collective Bargaining Agreement contract expires ? The party that calls for a strike or lockout can go back any time it chooses and "undo" the strike or lockout?

Sure. Why not? It often happens once there is an agreement in principle anyway. It can take weeks to get from that agreement to a signed CBA.

Tom

 

[Benji Frank]

So a lockout or strike has no irreversable legal consequences when a Collective Bargaining Agreement contract expires ? The party that calls for a strike or lockout can go back any time it chooses and "undo" the strike or lockout?

I'm sure there have been instances where the line has come down or the doors have been opened in good faith. I can't think of any recent ones, but if memory serves correct, a hospital here was on strike and thought they had a deal hammered out so they went back to work and once they voted against the contract, they went back on strike. I'm sure it would work both ways. I just see no reason for the NHL to unlock the doors at this stage. They've made absolutely no progress in negotiations & do not want to operate under the previous CBA. The lines been drawn. Why give the players anything?? It won't soften their stance.......

 

[Tom_Benjamin]

I just see no reason for the NHL to unlock the doors at this stage. They've made absolutely no progress in negotiations & do not want to operate under the previous CBA. The lines been drawn. Why give the players anything?? It won't soften their stance.......

The point is not to soften the player's stand. The point is that it is very hard to put financial pressure on guys who are millionaires many times over. There are several excellent reasons to lift the lockout while agreeing to play under the old CBA for another year:

1) They get to play the profitable half of the year, keeping most of the TV money and sponsorship cash. The crowds are much bigger in the second half of the season and in the playoffs, the players play for free.

2) The plan will be to reinstate the lockout again next September and again plan to do without the least profitable games. By lifting the lockout suddenly in January the European leagues will have to scramble to replace 300 players on short notice. This may make them less willing to hire NHL players next year.

3) A lot of star players now have a "Nolan" clause in their contracts. Unless they play 40 games this year, the player has the option of extending the contract. This is an obvious incentive to play 40 games this year.

4) If they are eventually aiming at impasse, lifting the lockout while tabling a new offer (with cost certainty of course) is evidence of good faith bargaining and will help if it ever gets to the NLRB.

5) A whole bunch of difficult legal questions become moot. They will be able to hold a draft. They will be able to make qualifying offers and retain the rights to players.

6) They will award a Stanley Cup. They will not push hockey completely out of the minds of the new fans in non-traditional markets.

7) For the third consecutive summer, an impending work stoppage, possible salary cap will inhibit free agent signings.

I can't think of a single thing the owners gain by not playing the second half of the season and they have a lot to lose. Why not?

Tom