NHLPA Board Game

May 9, 2005
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GRAND RAPIDS — If the National Hockey League doesn’t reach an accord with the National Hockey League Players Association on a new collective bargaining agreement for the upcoming season soon, the NHL will not go to the National Labor Relations Board and ask that an impasse be declared in its contract talks with the union — as reports have noted.

The league doesn’t have to go anywhere or see anyone to do that.

The NHL can declare an impasse whenever it wishes without getting the NLRB involved. The agency, which governs labor relations in the U.S., would only get involved if the NHLPA filed a complaint and accused the owners of an unfair practice charge or of bargaining in bad faith simply to reach an impasse.

But the union can’t file with the NLRB until the league implements its final offer.

Michael Snapper, who heads the labor division at Barnes & Thornburg LLP, said anytime there is a labor dispute between management and employees, the last contract remains in effect until some sort of resolution is made. That is why the owners locked the players out last September and cancelled the season in February, as they didn’t want to pay the players under a current agreement that they felt was too costly.

“That continues to be the case until a new agreement is reached or the employer declares an impasse. And if — and only if — there really is an impasse, then the employer is legally allowed to implement their final offer,” said Snapper.

Should the owners feel they have an impasse, they can enact all or part of their final offer. The NHL made two pitches to the union in March: either accept a $37.5 million (U.S.) salary cap for each franchise — which was $5 million under the $42.5 million cap the NHL offered in February — or agree that player salaries could not exceed 54 percent of league revenues.

The choice was up to the NHLPA, and the union rejected both.

Backing off the salary cap, though, might be seen as regressive bargaining on the part of the NHL by the labor board and could give the NHLPA a reason to file a charge with the NLRB should the league declare an impasse. The board could call off an impasse if it felt the league was solely bargaining to gain one, otherwise known as negotiating in bad faith.

“That is what is called regressive bargaining. That can be taken as evidence of bad-faith bargaining,” said Snapper of the salary cap drop.

“Of course, you need to know all the facts,” he added. “The owners might say the overall cap dropped back, but we made some other changes which offset that.”

But the dispute won’t reach the NLRB unless the union files a charge against the league.

“That charge would allege that the employer has broken the law by committing an unfair labor practice because they are not really at impasse. That is how it gets to the NLRB. The union is motivated to file a charge, if the employer implements its final offer,” said Snapper.

“If they’re at impasse, they’re legal in the U.S. and in two of the four provinces, I believe, in Canada. If they’re wrong and they haven’t yet reached an impasse, then they’re violating the federal labor law.”

For all practical purposes, the labor board says an impasse exists when it feels the parties have exhausted any possibility of reaching a settlement. The agency isn’t supposed to base its ruling on how close both sides might be, or on how one position might be more reasonable than the other.

So the fact that the union offered to reduce each player’s salary by 24 percent — which would have amounted to $270 million in the first year of a new contract — and agreed to lower entry-level salaries and to a salary cap of $49 million won’t enter into the labor board’s decision.

“There is no evaluation of the fairness or the merits of either party’s proposal. There are two issues they can look to. One is, if you look at the course of bargaining right down to the last meeting, are there things left to talk about? Two, is there anything to suggest that there is still movement on the part of either party?” said Snapper.

The difficulty of determining whether an impasse exists is that the labor board doesn’t have a tidy formula to follow where it can plug neat little numbers into a machine and then come up with an overall score. It’s a judgment call in every situation, but one.

“There is no way to be sure that you’re at an impasse, unless the other party agrees,” said Snapper. “But the players association is not going to do that.”     

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