NHLPA to require replacement players to repay lockout pay

[mudcrutch79]

I thought the quality of BRs post was quite high. Of all the people to accuse of bringing the quality of discussion down, your obsession with this one poster is awfully curious as you appear quite intelligent. Why did you find that eloquent explanation so inflammatory that a personal attack was warranted. Its becoming obsessive.

Whatever gets you through the night. There are some solid posters on here, but the agenda pushing, the complete and utter disregard for the facts gets quite tiresome. There are people like that on both sides, but, IMO, this guy's the worst for doing it, and he's a moderator. Maybe I'm spoiled by reading some of the writing of the Oilers mods-they raise the tone and level of discussion, and that's what I've come to expect. Part of the reason that this section of hfboards has gone into such a rapid descent is the example that BR has set.

Ray effectively abdicated his membership when he said he wasnt likely to ever play again. He has a known antagonsitic history with Goodenow, and his motives seem pretty clear to me.

That's your argument. I still think it's pretty flimsy, but his argument is that Ray abdicated his membership "by stating and then refusing to retract his intent to cross a picket line". I don't see how you can spin that into him saying that Ray abdicated (an absurd word to be using here, but whatever) by saying he was unlikely to play again.

Bettman can fire a person for leaking a document. Unions can force people to pay membership and still deny them union representation if they go against union wishes. Maybe you dont like it, but this idea that Ray is "owed" this strike fund, when you and I both know he is retired on his bassboat he was given for retiring. He is making a nuisance technicality case in order to hamper the people who have voted to use their strike pay for a collective unified purpose..

This situation is governed by the law, and not what you or I may think Ray is going to do post-lockout. I suspect if the Sens wanted to bring him in again at the minimum, he'd jump for it, but that's irrelevant. I laid out above the circumstances under which the NHLPA can deny him benefits. I have a hard time believing that the board is granted the necessary degree of discretion to arbitrarily deny benefits to people, particularly given the NHLPA's history.

He says Goodenow promised that even guys like Rayzor would be covered by the strike fund. Fair enough, maybe he has grievance rights within union guidelines. But then he crossed the unions position and said he wouldnt support them but would become a scab. Then said he was kidding he would never play again. Insisting he should receive strike pay after that seems ridiculous on its face.

Not if the rules are as he says they are. There are two sides to every story, but it's difficult to dispute facts like rules, which tend to be written down. If, IF, the rules are as he's presented them, it seems to me that he's got an excellent case.

Only a Bettman would try to make such a case. It seems clear he has abdicated his membership for the purpose of receiving strike pay, and it seems clear any union would take the same position. Just as Bettman would if one of his GMs came out and said he intends to break any cap.

Any union couldn't legally take the same position, unless their by-laws permitted it, and even then, I suspect a clever lawyer would find a way to attack it.

 

[David A. Rainer]

Please stop the personal attacks in this thread. To this point, I have just been editing threads to eliminate the attacks. From this point forward, I will not be so accomodating.

 

[mudcrutch79]

Is the agreement legal? Yes
Does the NHLPA have the right to draft their own internal rules (Bylaws) as they see fit? Yes
Is there consideration for the agreement? Yes, making the stipend a conditional (remember, courts will rarely look at the efficacy of the consideration, merely that there is some sort of consideration or forebearance is sufficient).
Is consideration even required? No, the members can vote to end the stipend so they can also vote to place a condition on the stipend (but there is some question over whether this was voted on, if not, you would have to look at the powers granted the union management)
Why would a player agree to it? Trying to keep the union solid (creating a disincentive to cross)
From where is my law degree? Loyola Law School

I'm not sure about the state of the law in the US, but I strongly suspect that in Canada this would be a very difficult contract to enforce. Courts up here have struck down clauses in employment contracts preventing employees from taking up similar employment for X months afterwards. s.45(1) of the Competition Act makes it an offence to agree to conspire to restrain or injure competition. It seems to me that signing contracts forcing a repayment if you play if a resolution is imposed would be a conspiracy to injure competition. It's Christmas, and I'm too lazy to go much further with this, but if someone knows it doesn't apply, by all means enlighten me.

 

[David A. Rainer]

I'm not sure about the state of the law in the US, but I strongly suspect that in Canada this would be a very difficult contract to enforce. Courts up here have struck down clauses in employment contracts preventing employees from taking up similar employment for X months afterwards. s.45(1) of the Competition Act makes it an offence to agree to conspire to restrain or injure competition. It seems to me that signing contracts forcing a repayment if you play if a resolution is imposed would be a conspiracy to injure competition. It's Christmas, and I'm too lazy to go much further with this, but if someone knows it doesn't apply, by all means enlighten me.

In the US, that would be a "non-competition clause" (conditioning employment on the employee not leaving the company to pursue employment with a competitor of the company) and are very legal. It is recognized that industry/trade secrets are very valuable and important to some companies and such non-competition clauses are enforced to prevent employees (who might have special knowledge of the company's secrets) from just jumping to another company with the secrets.

However, while your analogy is good, I don't think that is what is coming into play here. There is a corollary effect of restricting competition (placing a disincentive on crossing the picket line and entering the labor market). In US labor law (and I really need to stop presuming that US labor law is the same in Canada, because I know nothing about Canadian labor law), Congress has exempted employees (through unions) from a lot of Anti-trust law. If a union creates such a conditional, it would be enforced under labor law (that is why I believe that consideraton isn't even necessary for this agreement) as necessary to continue the collective bargaining process.

 

[mudcrutch79]

However, while your analogy is good, I don't think that is what is coming into play here. There is a corollary effect restricting competition (placing a disincentive on corssing the picket line and entering the labor market). In US labor law, Congress has exempted employees (through unions) from a lot of Anti-trust law.

Does that exemption still apply if there isn't a legal strike position? It seems to me that this is a pretty naked attempt to try and ensure that the NHL has little success in imposing a settlement that would be considered legal by the NLRB. Were it to get to this point, this action might even be considered an illegal strike in Canada, given that I don't think employees are generally required to repay strike pay when they return to work after a work stoppage. That's the problem I have with the legality of this whole thing-by law, the union can't do anything to dissuade employees to return to work after a work stoppage, in Canada at least.

 

[David A. Rainer]

Does that exemption still apply if there isn't a legal strike position? It seems to me that this is a pretty naked attempt to try and ensure that the NHL has little success in imposing a settlement that would be considered legal by the NLRB. Were it to get to this point, this action might even be considered an illegal strike in Canada, given that I don't think employees are generally required to repay strike pay when they return to work after a work stoppage. That's the problem I have with the legality of this whole thing-by law, the union can't do anything to dissuade employees to return to work after a work stoppage, in Canada at least.

I'm not sure what you mean by a "legal strike position". Do you mean that the position being taken by the NHLPA is not legal?

Plain and simple, this is an attempt to stop a break in the union and keep both sides at the bargaining table. This is perfectly fine in US law and, in fact, is encouraged by the NLRA.

The unions generally don't dissuade employees from returing to work after a work stoppage. However, they do dissuade employees from going to work DURING a work stoppage. It is my understanding that that is what this agreement is designed to do - prevent union members from crossing the line during the stoppage by requiring him to return the stipend they have received if they do. A union basically has carte blanche to take steps necessary to further this, assuming all other requirements are met (duty of fair representation, duty to bargain in good faith, etc.).

 

[mudcrutch79]

I'm not sure what you mean by a "legal strike position". Do you mean that the position being taken by the NHLPA is not legal?

Plain and simple, this is an attempt to stop a break in the union and keep both sides at the bargaining table. This is perfectly fine in US law and, in fact, is encouraged by the NLRA.

The unions generally don't dissuade employees from returing to work after a work stoppage. However, they do dissuade employees from going to work DURING a work stoppage. It is my understanding that that is what this agreement is designed to do - prevent union members from crossing the line during the stoppage by requiring him to return the stipend they have received if they do. A union basically has carte blanche to take steps necessary to further this, assuming all other requirements are met (duty of fair representation, duty to bargain in good faith, etc.).

Reading the story again, I'm a little confused. The story says that "Bob Goodenow made all NHL players sign a contract stating that if they were to play for the NHL during the lockout, they must repay the NHLPA stipend they have received so far."

What does that mean? It can't mean that if Jason Smith shows up at the rink in Edmonton tomorrow, he has to repay the money-what'd be the point of having such a clause, Lowe would tell him to go away. I don't understand how you can go to work during a lockout, unless they mean in a post-lockout situation, with a CBA imposed that the NHLPA doesn't like. I could see this making sense if this were a strike, but it's not. Is your read on what the story means different?

 

[David A. Rainer]

Reading the story again, I'm a little confused. The story says that "Bob Goodenow made all NHL players sign a contract stating that if they were to play for the NHL during the lockout, they must repay the NHLPA stipend they have received so far."

What does that mean? It can't mean that if Jason Smith shows up at the rink in Edmonton tomorrow, he has to repay the money-what'd be the point of having such a clause, Lowe would tell him to go away. I don't understand how you can go to work during a lockout, unless they mean in a post-lockout situation, with a CBA imposed that the NHLPA doesn't like. I could see this making sense if this were a strike, but it's not. Is your read on what the story means different?

Right now there is a work stoppage. Meaning, the current CBA has expired and neither side has come to an agreement on a new CBA. At some point, the NHL is going to pursue judicial declaration of impasse at which point they can impose their "last, best offer" made to the NHLPA. And it is at that point that the NHLPA goes on strike and the NHL begins to look for replacement players. If any members of the NHLPA cross the line and become a replacement player, they will have to give back their stipend that has been received. For the NHLPA's sake, there is still a work stoppage and they have the power granted them under the NLRA to prevent a breaking of the ranks (members becoming replacement players) by whatever means necessary (within reason). This would most definitely include forfeiture of all union rights, including the stipend and requesting that they give back all that had been gained through the union (past stipend).

 

[me2]

http://www.nrtw.org/RDA.htm

Regardless of whether an employee is a voluntary union member or instead was misled or coerced into joining, that employee has the right to resign and sever his relationship with the union, and thereby avoid internal union fines and discipline.

In Pattern Makers v. NLRB,(26) the Supreme Court held that employees have the right to resign from a union at any time, and that union rules restricting resignations are illegal. By granting employees the right to "refrain from any or all" activities, the NLRA guarantees each employee the right to resign from union membership at any time,(27) although the employee may be required to comply with a union's constitution and by-laws provisions that require the resignation be in writing and sent to a designated officer of the local union.(28)

In Pattern Makers, the Court reaffirmed its holding in NLRB v. Granite State Joint Bd., Textile Workers Local 1029, which said:

[T]he power of the union over the member is certainly no greater than the union-member contract. Where a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that conduct. That is to say, when there is a lawful dissolution of a union-member relation, the union has no more control over the former member than it has over the man in the street.(29)

Thus, a union member is free to resign from union membership at any time and cannot be disciplined by the union for post-resignation conduct, even if its constitution or bylaws purport to restrict the member's right to resign. When an individual effectively severs his relationship with the union through resignation, the union's right to discipline him for post-resignation conduct ceases.(30)

If a union official tells a member that he is not free to resign, this is a false statement and the union should thereafter lose its power to discipline that employee for actions taken after that false statement, because employees are not required to undertake gestures which the union tells them will be futile.(31) Moreover, if a union attempts to discipline a former member for events that occurred after his resignation, it violates Section 8(b)(1)(A) of the National Labor Relations Act. In Laborers Northern California District Council (Hayward Baker),(32) the NLRB concluded that, where a union files disciplinary charges against employees in retaliation for their exercise of statutory rights, the employees should be awarded their costs in defending against those charges. (One might also argue that a union's filing of a state court lawsuit to enforce discipline against a nonmember provides a basis for a civil remedy under an abuse of process or malicious use of process theory.)

Involuntary Membership Defenses Under Federal Law

Any individual who becomes or remains a member of a labor organization through coercion, duress or misrepresentation may have a valid defense to any union disciplinary action. Any such defenses should first be pursued by filing an unfair labor practice charge with the NLRB, as it is a violation of Section 8(b)(1)(A) of the Act for a union to procure an employee's membership through coercion, duress or misrepresentation.(45)

It would be interesting to see the union-player contracts that they have to sign to get their lockout pay.

 

[mudcrutch79]

Right now there is a work stoppage. Meaning, the current CBA has expired and neither side has come to an agreement on a new CBA. At some point, the NHL is going to pursue judicial declaration of impasse at which point they can impose their "last, best offer" made to the NHLPA. And it is at that point that the NHLPA goes on strike and the NHL begins to look for replacement players.

OK, I don't know enough about the American system of impasse and imposition of an agreement to comment here, but if there is an impasse, and the NHL is allowed to impose their "last, best offer" wouldn't there then be an operating CBA? In Canada, all CBA's are deemed to include provisions banning strikes during the operation of the agreement. Does America have such a provision in their body of labour law? If so, by striking, wouldn't the PA be violating the agreement that is imposed-or is the agreement that's imposed not a "real" CBA?

 

[FlyersFan10*]

The only thing about all of this is that this must apply to players who belong to the NHLPA. Any player from overseas or who doesn't belong to the NHLPA wouldn't be privvy to this payment. I'm sure though that said player who eventually wanted to join the union would probably be denied entry anyways. All what I can say is who cares and get a deal done. No more posturing, no more bs. Just get back to the table and get a deal done.

 

[David A. Rainer]

http://www.nrtw.org/RDA.htm

It would be interesting to see the union-player contracts that they have to sign to get their lockout pay.

Boy, you really made me dust off the old www.lexis.com log-in info for this one.

§ 157. Rights of employees as to organization, collective bargaining, etc.
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [29 USCS § 158(a)(3)].

Well established that employees have the right to engage or refrain from engaging in concerted activities.

[Union enforcement of internal rules and fines], in such case lawfulness of union's conduct depends upon factual determination that union rules have been reasonably enforced, have been applied only to union members, and could be avoided by union members' election to leave union. National Cash Register Co. v NLRB (1972, CA6) 466 F2d 945, 81 BNA LRRM 2001, 69 CCH LC P 12964, cert den 410 US 966, 35 L Ed 2d 700, 93 S Ct 1442, 82 BNA LRRM 2728.

However, there is an exception where the Union must show that the rule is necessary when the existence of the Union is at stake. In other words, the Union is permitted to take extra necessary steps to keep the union together when it looks like it is about to break. PROVIDED that all members are still free to resign.

Union cannot restrict members' right to resign in anticipation or during pendency of internal union misconduct charges since imposing any restrictions on member's right to resign would significantly impair statutory policy of voluntary unionism, but unions can sanction former members for preresignation misconduct. NLRB v Local 73, Sheet Metal Workers' International Asso. (1988, CA7) 840 F2d 501, 127 BNA LRRM 2801, 108 CCH LC P 10342.

Union has the ability to sanction for pre-resignation conduct by a member.

Union cannot lawfully fine individual for crossing picket line after depositing signed notorized resignation in union's night receipt box since placing resignation in box is tantamount to personal delivery making resignation effective immediately. General Teamsters Local No. 439, etc. (1986) 281 NLRB 1232, 123 BNA LRRM 1228, 1986-87 CCH NLRB P 18251, enforced (CA9) 837 F2d 888, 127 BNA LRRM 2581, 108 CCH LC P 10283.

There is a specific process for resignation, for which failure to do so will not constitute resignation. Believe it or not, it is possible for union members to cross picket lines without leaving the union.

Proviso contained in § 8(b)(1)(A) of amended National Labor Relations Act (29 USCS § 158(b)(1)(A)) preserves rights of unions to impose fines as lesser penalty than expulsion, and to impose fines which carry explicit or implicit threat of expulsion for nonpayment; under this proviso, rule in union constitution governing fines is valid and fines themselves and expulsion for nonpayment would not be unfair labor practice, nor would notification threatening fines to union members who continue to work during authorized strike be unfair labor practice. NLRB v Allis-Chalmers Mfg. Co. (1967) 388 US 175, 18 L Ed 2d 1123, 87 S Ct 2001, 65 BNA LRRM 2449, 55 CCH LC P 11972, reh den 389 US 892, 19 L Ed 2d 202, 88 S Ct 13.

As long as the employee remains a member of the union, the ability to fine them for crossing the picket line is still enforced. The type of fine that is not enforceable is a penalty for resigning from the union.

Why would an employee cross the picket line and not leave the union? When the strike is over and everyone goes back to work, a Union has the right to refuse membership to those that crossed or the employee can lose his seniority status within the union. At some, the strike will end and there will be a union representing the players (either the current one or a new one). The union has the right to deny membership to the picket crossers and is something those players resigning from the union to avoid the stipend penalty will have to face.

So basically, although every employee has the right to leave the NHLPA to avoid the penalty, the Union has the right to permamently ban the employees from membership in the Union when the strike is over. It is a choice each will have to make on whether to avoid the give-back of the stipend, avoidance of which will result in being banned from membership in the union.

 

[myrocketsgotcracked]

Ray effectively abdicated his membership by stating and then refusing to retract his intent to cross a picket line. Even though there are no replacement games as of yet, there is still an ongoing lockout. Thus, the picket line exists.

my memory maybe failing me here, but i remember some pro-nhlpa people stating that this is a lockout, not a strike, thus there is no picket line. how does the picket line exist in this case? and if there is no picket line, whats wrong with ray's comment and how did it "effectively abdicated his membership" (not even sure what that means)?

 

[Bicycle Repairman]

my memory maybe failing me here, but i remember some pro-nhlpa people stating that this is a lockout, not a strike, thus there is no picket line. how does the picket line exist in this case? and if there is no picket line, whats wrong with ray's comment and how did it "effectively abdicated his membership" (not even sure what that means)?

Picket lines can exist during lockouts. We're going over old territory here.

 

[thinkwild]

Reading the story again, I'm a little confused. The story says that "Bob Goodenow made all NHL players sign a contract stating that if they were to play for the NHL during the lockout, they must repay the NHLPA stipend they have received so far."

What does that mean? It can't mean that if Jason Smith shows up at the rink in Edmonton tomorrow, he has to repay the money-what'd be the point of having such a clause, Lowe would tell him to go away. I don't understand how you can go to work during a lockout, unless they mean in a post-lockout situation, with a CBA imposed that the NHLPA doesn't like. I could see this making sense if this were a strike, but it's not. Is your read on what the story means different?

Obviously there would be no one playing in the NHL during a lockout. They must repay their stipend, if the majority have voted to strike after an attempt at imposition, and yet they choose to act indivudually.

I dont really see the uproar. There are threads here about breaking the union, the majoity of fans are hoping to break the union, radio broadcasters spend all their time seeking at angles they can present in a hope to break the union, everyone assumes Bettman and the hardliners plans are to break the union, the generally expected result is the owners will hold out until they break the union.

The PA puts rules on its payments of lockout stipends and there is shock, indignation, tut-tutting over their attempt to solidify their union. Seizing on this case to make some statement on the PA is just ridiculous. Ther eis nothing unusual or unexpected about it.

 

[mudcrutch79]

Obviously there would be no one playing in the NHL during a lockout. They must repay their stipend, if the majority have voted to strike after an attempt at imposition, and yet they choose to act indivudually.

Not if the union isn't legally allowed to strike. It's unclear to me how you can legally go on strike once a CBA has been proposed. Requiring players who went back to work then to repay their strike stipend would strike me as an illegal strike, and likely an illegal contract. I'm almost sure this would be true in Canada, although we don't have imposed CBA's here.

I dont really see the uproar. There are threads here about breaking the union, the majoity of fans are hoping to break the union, radio broadcasters spend all their time seeking at angles they can present in a hope to break the union, everyone assumes Bettman and the hardliners plans are to break the union, the generally expected result is the owners will hold out until they break the union.

I think that the owners are too smart to break the union.

The PA puts rules on its payments of lockout stipends and there is shock, indignation, tut-tutting over their attempt to solidify their union. Seizing on this case to make some statement on the PA is just ridiculous. Ther eis nothing unusual or unexpected about it.

It's not tut-tutting or anything like that. I'm just making the point that there is a legal regime which governs in this case. When the players say things like "The owners are lying about their revenues", they should back it up with an unfair labour practices complaint to the NLRB. When they don't, it makes me think that they essentially accept the numbers the owners are putting forward as being truthful. The same goes here-I have a hard time seeing how you can legally encourage what would be an illegal strike.

 

[Wetcoaster]

I'm not sure about the state of the law in the US, but I strongly suspect that in Canada this would be a very difficult contract to enforce. Courts up here have struck down clauses in employment contracts preventing employees from taking up similar employment for X months afterwards. s.45(1) of the Competition Act makes it an offence to agree to conspire to restrain or injure competition. It seems to me that signing contracts forcing a repayment if you play if a resolution is imposed would be a conspiracy to injure competition. It's Christmas, and I'm too lazy to go much further with this, but if someone knows it doesn't apply, by all means enlighten me.

Unions ("combinations or activities of workmen or employees") are exempted from the provisons of the Competition Act per s.4(1).