Tom_Benjamin said:
I think it is really hard to judge what the NLRB would do. There does not seem to be much that is set in stone. One paper I read (sorry, I can't find the link now) suggested that the very lack of clarity drives the bargaining process apart. The owners declare impasse and implement their CBA, then the union files for an injunction and then the NLRB decides. Before the fact both the NHL and NHLPA will be guessing.
I think the situation was pretty much the same in baseball in 1994 and the players won their case. The length of time the league has wanted a cap really isn't relevent. What I think is relevant is that the owners aren't willing to negotiate anything except a cap. I don't think there has been any bargaining. I think the owners decided they wanted a cap five years ago, that's their position and they have not budged. The real purpose of the negotiators on both sides has been to get their positions before the media.
But who knows what the NLRB will decide? There is no clear test. I don't think either the NHL lawyers or the NHLPA lawyers know either. I think a lot will depend on what moves the owners make between now and when they declare an impasse. What are they planning to do? What are they waiting for? Why don't they just declare it now? At least that would stick the puck in the player's end, but it entails significant risk.
The players could very well report to work and file the unfair labour practice. If they win, the season proceeds under the old CBA. If they lose, the players announce a strike date for March 15th and try to force the employer back to the bargaining table.
Tom
Thanks for the response Tom,
I asked for your opinion primarily because my interest was piqued by an article a few weeks ago by Steven Brunt in the Globe that referred back to the 1994 baseball situation, so I did a bit (emphasis on "bit") on some of the things he was talking about. The theme of the article as I recall it was that hockey fans should remember the name of Sonia Sotomayor, the judge that upheld the NLRB's (3-2 split) decision invalidating the impasse declaration of the MLB owners. Brunt's suggestion was that a similar situation could occur in hockey if the Owners attempted to declare an impasse, with the result that nothing would be settled, the fans would be upset because the season would have been lost for "nothing" and the league would take 10 years to recover lost fan support, as baseball has.
However, after doing my bit of research, I did not come to the same conclusions as Brunt did about the likely impact of an impasse declaration by the NHL. The following struck me as relevant differences:
1. Baseball's disruption in 1994 was a strike. This is a lockout. Since the Baseball PA had created the stoppage, they had the initiative to end the strike immediately after Sotomayor upheld the LRB decision. In the NHL's lockout situation, the initiative to respond to a similar decision would rest with the owners. So if the LRB declared an NHL impasse to be similarly invalid, it seems to me that the worst that would happen to the NHL is that they would go back to the current standoff of relying on the lockout pending the development of an acceptable new CBA to put pressure on the players.
2. The composition of the NLRB may change from the democratic dominated one in place during the early Bubba era to more of a republican bent (of course, it might go back to being democrat dominated, I guess we'll see in a few weeks).
3. I think that the NHL has been open to negotiation of a cap for 5 years and to renegotiation of the CBA before expiry (while the NHLPA was not open to pre-expiry negotiations) would work in the NHL's favour. By contrast, part of the LRB's finding of bad faith bargaining by MLB was that the owners had exercised an option to re-open the baseball basic agreement 18 months prior to the 1994 strike but had not started substantive negotiations until just before the strike began. I think that the NHL has learned from this and that this is precisely why they've been trying so hard to convey the message of openness to negotiate for such a long time in advance of the lockout.
All this being said, I think it is very clear to me that the NHL intends to declare impasse at some time before the season is written off. I say this because Bettman was so much at pains during his CBC town hall with Mansbridge a few weeks ago to say that while they were not at all contemplating impasse, he explained in detail how the NHL had a right to do this after a certain amount of time. (He was obviously lying about this).
Similarly, the position of Goodenow that has frustrated so many fans so far is explainable in light of the likely legal manuevering to come. Goodenow needs to be able to say that union has never and would never consider a cap in order to make their case stronger against the NHL when the NLRB deals with the NHL's impasse declaration when it comes. This is why Goodenow has not wasted a lot of time trying to deal with the criticism that he's losing the public relations war. He knows, as does the NHL, that the real war is the preparations for the NLRB's process and subsequent appeals. Fan support is necessary collateral damage.
W.r.t your scenario of decertification (I think this was in a prior post of yours in this thread), I say it doesn't happen. Certainly theoretically possible, but I don't think the majority of the players at the end of the day have the balls to make this happen. I agree with part of Bruce Dowbiggin's hypothesis that if the market were actually free for player movement, the results would be like the range of compensation for movie actors - a very small elite that makes mega bucks, and a much bigger mass that makes a fraction of the stars salaries. All that's needed to make that happen is to eliminate the scarcity currently caused by restricted free agency. (IMO, if the owners could just see this, they'd be much better off leverage wise....)
My take. Any thoughts?
HBP
