Legal question: selective lockout?

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ColoradoHockeyFan

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Feb 17, 2005
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Wetcoaster said:
Burkie claims otherwise or has been reported as claiming otherwise. That is not correct.

For an example of this claim, please go to

http://www.cknw.com/audiovault/audiovault.cfm

and select Thursday March 3rd at 10pm. Advance the slider to the 31:00 minute mark... that is the exact point at which Dan Russell asks Burke about the league's options. He then brings up the two different ways to bring in replacement players (one with impasse and one without).

It would be great if you guys could comment on what he says specifically there.
 

PecaFan

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ColoradoHockeyFan said:
If I'm under the wrong impression about him having a legal background, fine.

Burke has a Harvard law degree. In the "Wetcoaster World", that's some fly by night joint offering mail order degrees. :shakehead
 

Weary

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Wetcoaster said:
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.
No impasse was declared in Harter.

You should stop bashing Burke for being correct.
 

Wetcoaster

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PecaFan said:
Burke has a Harvard law degree. In the "Wetcoaster World", that's some fly by night joint offering mail order degrees. :shakehead
I have never said any such thing. I acknowledged his degree from Harvard.
 

PecaFan

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Wetcoaster said:
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.

"9 Although American Ship Building dealt with a postimpasse
lockout, the Board has applied the principle in that case to
preimpasse lockouts."

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

Wetcoaster

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Weary said:
No impasse was declared in Harter.

You should stop bashing Burke for being correct.
In 1987, however, in its Harter Equipment decision, the National Labor Relations Board (NLRB) decided that, so long as a true bargaining impasse has been reached in collective bargaining, the employer may utilize the economic weapon of locking out its employees and continuing to operate its business with temporary employees. While temporary employees may not be the permanent replacements allowed by Mackay, the Harter case for the first time allowed an employer to utilize a strike as an employer weapon for the sole purpose of forcing the employees to accept the employer’s demands in collective bargaining.
http://www.msba.org/departments/commpubl/publications/bar_bult/2005/jan05/strikes.htm
 

Weary

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HARTER EQUIPMENT 597

Harter Equipment, Inc. and Local 825, International
Union of Operating Engineers, AFL-CIO. Case
22-CA-11527

24 June 1986

DECISION AND ORDER

BY CHAIRMAN DOTSON AND MEMBERS
DENNIS, JOHANSEN, AND BABSON


It is clear that no impasse had occurred here. At the time of the lockout the parties were still negotiating, Respondent had just presented the Union with a new offer and Respondent admitted that much progress had been made, including the granting of concessions at the meetings immediately prior to the lockout.
 

Weary

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ColoradoHockeyFan said:
For an example of this claim, please go to

http://www.cknw.com/audiovault/audiovault.cfm

and select Thursday March 3rd at 10pm. Advance the slider to the 31:00 minute mark... that is the exact point at which Dan Russell asks Burke about the league's options. He then brings up the two different ways to bring in replacement players (one with impasse and one without).

It would be great if you guys could comment on what he says specifically there.
He's saying the league has two ways to get replacement players:
1. The league hires temporary replacements while the lockout continues. They would set work rules for those replacements.

2. The league declares an impasse and imposes their final proposal. In response, the NHLPA goes on strike. The league then uses replacement players who work under the imposed rules.

The first one sounds interesting, but there ares problems. As far as I can tell, #1 has never been tested with regard to antitrust issues. Since the players wouldn't be part of the collective bargaining unit, things such as the draft, rookie contracts, and restricted free agency may be invalid.

Now those issues may not seem like a big deal with replacement players filling the league, but there's a hitch. What if Sidney Crosby wants to be a replacement? He would basically end up going to the highest bidder. What about legit NHLers who decide to cross? Same thing.

That's pretty dangerous ground for the NHL.
 

me2

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Jun 28, 2002
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eye said:
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.


I think they are classed, to best of my knowledge, as dependent contractors, and therefore are treated as employees under the labour code (at least in BC). They aren't going away as a union just because of the name.

Now if they were to form their own league I think it might get more interesting from legal point of view. The might have give up being the NHL representitive union if they are running a business in direct competition. It would seem to be a massive conflict of interest and very anti-competitive.
 

me2

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Weary said:
He's saying the league has two ways to get replacement players:
1. The league hires temporary replacements while the lockout continues. They would set work rules for those replacements.

2. The league declares an impasse and imposes their final proposal. In response, the NHLPA goes on strike. The league then uses replacement players who work under the imposed rules.

The first one sounds interesting, but there ares problems. As far as I can tell, #1 has never been tested with regard to antitrust issues. Since the players wouldn't be part of the collective bargaining unit, things such as the draft, rookie contracts, and restricted free agency may be invalid.

Now those issues may not seem like a big deal with replacement players filling the league, but there's a hitch. What if Sidney Crosby wants to be a replacement? He would basically end up going to the highest bidder. What about legit NHLers who decide to cross? Same thing.

That's pretty dangerous ground for the NHL.

If they can prove the lockout is a defensive lockout they can hire permanent replacements. Permanent replacements have voting rights. After 12 months of being locked out/replaced the NHLers lose their voting rights. Hire permanent replacements, wait 12 months, replacements now runs the NHLPA/start new union. NHL signs a CBA with the union under new control.

If they fail with the defensive lockout argument then they can only hire temporary replacements with no voting rights. The union might strike and try to include unfair labour charges as part of the reason for a strike. If successful this prevents permanent replacements and allows only temporary replacements.

The problem for the NHL is convincing the judge it was a defensive lockout (to stop strikes and protect the business from stike damage) and not an offensive strike (purely economic). They might be able to use the examples of the NHLPA striking during the early 90s and the MLBPA striking to kill the playoffs. They wouldn't want to be in those positions again. Even Wetcoaster proposed striking during the playoffs as a possible and damaging NHLPA strategy.
 

Bicycle Repairman

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Question regarding this "Selective Lockout" gambit.

Outside of Entry Level contract players (who do in fact have salary limits), aren't all NHL players covered by the same Standard Players contract? If so, there's no precedent for players classified in regards to level of salary. What would be the argument in favor of classifying players in such a way? Wouldn't the NHL have to convince the NLRB to accept "The International Brotherhood of Guys Making Less Than A Million" represents a different "community of interest," and therefore a seperate bargaining unit?
 
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me2

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Bicycle Repairman said:
Question regarding this "Selective Lockout" gambit.

Outside of Entry Level contract players (who do in fact have salary limits), aren't all NHL players covered by the same Standard Players contract? If so, there's no precedent for players classified in regards to level of salary. What would be the argument in favor of classifying players in such a way? Wouldn't the NHL have to convince the NLRB to accept "The International Brotherhood of Guys Making Less Than A Million" represents a different "community of interest," and therefore a seperate bargaining unit?

I can't see it working. They could try and open it up to players not contracted to Europe. This would achieve a very similar effect as most of the high profile players have left to Europe.
 

Bicycle Repairman

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me2 said:
I can't see it working. They could try and open it up to players not contracted to Europe. This would achieve a very similar effect as most of the high profile players have left to Europe.

That's ridiculous. The NHL's lawyers would be laughed out of the hearing room.
 

vanlady

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Weary said:

Before you start troting out Harter I suggest you do a little research, Harter was a very specific set of circumstances and has never been successfully argued in any other case. American Ship Building is the standard in this area.

Also remember the foundation of any impasse is the deadlock, the minute the union moves a centimeter closer to the company bargaining position, there is no impasse. Bob Goodenow isn't stupid, the hard cap concession killed any impasse.
 

Weary

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vanlady said:
Before you start troting out Harter I suggest you do a little research, Harter was a very specific set of circumstances and has never been successfully argued in any other case. American Ship Building is the standard in this area.
B-Bar-B, Inc. and Teamsters Local 783, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 9-CA-21278
For the reasons fully set forth in Harter Equipment, 280 NLRB 597 (1986), which issued after the judge's decision, we agree with his finding that the Respondent did not violate the Act by hiring temporary replacements after it had locked out its union-represented employees.

Marquette Company, Gulf & Western Natural Resources Group and Local 50, District Council #8, United Cement, Lime and Gypsum Workers. Case 3-CA-10274
Having found that the Respondent's conduct in locking out the clerical employees was lawful, we must consider whether the use of temporary replacements approximately 1 week into the lockout violated the Act, as found by the judge. In Harter Equipment, 280 NLRB 597 (1986), the Board reaffirmed the principle enunciated in the plurality opinion in Ottawa Silica Co.,13 that, absent specific proof of antiunion motivation, an employer does not violate Section 8(a)(3) and (1) of the Act by hiring temporary replacements in order to engage in business operations during an otherwise lawful lockout.
...
We find that the Respondent's use of temporaryreplacements was "a measure reasonably adapted to the achievement of a legitimate employer interest."


Bali Blinds Midwest, a Marathon Carey-McFall Company, a Division of Marathon Manufacturing Company and Local 590, International Association of Bridge, Structural and Ornamental Iron Workers. Case 13-CA-25783
The Board recently held in Harter Equipment,8 that the use of temporary employees during an otherwise lawful lockout has a comparatively slight adverse effect on employee rights and is prima facie lawful where the employer comes forward with evidence of legitimate and substantial business justification. The temporary layoff of employees strikes me as little different in terms of adverse effect on employee rights than their temporary replacement, as in Harter, and I therefore conclude that effect is in this case comparatively slight.


vanlady said:
Also remember the foundation of any impasse is the deadlock, the minute the union moves a centimeter closer to the company bargaining position, there is no impasse. Bob Goodenow isn't stupid, the hard cap concession killed any impasse.
That's a form of bad faith bargaining called "surface bargaining." It can't be used to disprove an impasse. Goodenow is smart enough not to try that, anyhow.
 

hockeytown9321

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Jun 18, 2004
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PecaFan said:
Burke has a Harvard law degree. In the "Wetcoaster World", that's some fly by night joint offering mail order degrees. :shakehead

Bob Goodenow has a degree from Harvard too, but most here seem to think he's a complete idiot.
 

hockeytown9321

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Weary said:
That's a form of bad faith bargaining called "surface bargaining." It can't be used to disprove an impasse. Goodenow is smart enough not to try that, anyhow.

Its not surface bargaining if its a leitimate attempt to make a deal. I don't kow that the NHL wants to take the risk of the NLRB interpreting that.
 
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