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11-19-2012, 01:56 PM
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Originally Posted by thinkwild View Post
I guess, and hope, that such a case would a tough victory for the owners, and that the many cases like most recently american needle havent been laying the groundwork for an assault on what that professor recently linked here called the owners ultimate desire for the shangri-la of ever-lasting anti trust immunity.

But if the hockey players were to decertify, i wonder how hard would the owners try to prevent their killing of the union? Maybe hockey is the league they are prepared to try a decertified landscape in. It's really hard to get a handle on just how much leverage is in that course of action for players.

I would expect the NHL would take the same approach that the NBA took: essentially arguing that the decertification is a sham negotiating tactic rather than a genuine impasse. One other position the NBA advanced that was never legally ruled on is that all player contracts would be void in the absence of a union and collective bargaining agreement. How a court might find that argument if the NHL took a similar view I have no idea. Ultimately the NHL would prefer to have a PA union to collectively bargain with.

Brown v NFL seems to set a precedent that the NHL would be largely immune to anti-trust claims for some period before and following the determination of an impasse, though the ruling doesn't establish specific time boundaries. It was interesting that anti-trust lawsuits were still brought by players in the NFL and NBA cases in spite of that ruling, though none were resolved in court.

Brown v NFL is an interesting read for those inclined to court rulings.

If the antitrust laws apply, what are employers to do once impasse is reached? If all impose terms similar to their last joint offer, they invite an antitrust action premised upon identical behavior (along with prior or accompanying conversations) as tending to show a common understanding or agreement. If any, or all, of them individually impose terms that differ significantly from that offer, they invite an unfair labor practice charge. Indeed, how can employers safely discuss their offers together even before a bargaining impasse occurs? A preimpasse discussion about, say, the practical advantages or disadvantages of a particular proposal, invites a later antitrust claim that they agreed to limit the kinds of action each would later take should an impasse occur. The same is true of postimpasse discussions aimed at renewed negotiations with the union. Nor would adherence to the terms of an expired collective bargaining agreement eliminate a potentially plausible antitrust claim charging that they had "conspired" or tacitly "agreed" to do so, particularly if maintaining the status quo were not in the immediate economic self interest of some. Cf. Interstate Circuit, supra, at 222-223; 6 Areeda, supra, at 1425. All this is to say that to permit antitrust liability here threatens to introduce instability and uncertainty into the collective bargaining process, for antitrust law often forbids or discourages the kinds of joint discussions and behavior that the collective bargaining process invites or requires.

We do not see any obvious answer to this problem. We recognize, as the Government suggests, that, in principle, antitrust courts might themselves try to evaluate particular kinds of employer understandings, finding them "reasonable" (hence lawful) where justified by collective bargaining necessity. But any such evaluation means a web of detailed rules spun by many different nonexpert antitrust judges and juries, not a set of labor rules enforced by a single expert administrative body, namely the Labor Board. The labor laws give the Board, not antitrust courts, primary responsibility for policing the collective bargaining process. And one of their objectives was to take from antitrust courts the authority to determine, through application of the antitrust laws, what is socially or economically desirable collective bargaining policy. See supra, at 3-4; see also Jewel Tea, 381 U. S., at 716-719 (opinion of Goldberg, J.).

Both petitioners and their supporters advance several suggestions for drawing the exemption boundary line short of this case. We shall explain why we find them unsatisfactory.
The problem is aggravated by the fact that "impasse" is often temporary, see Bonanno Linen, supra, at 412 (approving Board's view of impasse as "a recurring feature in the bargaining process . . . a temporary deadlock or hiatus in negotiations which in almost all cases is eventually broken, through either a change of mind or the application of economic force ") (internal quotation marks omitted); W. Simkin & N. Fidandis, Mediation and the Dynamics of Collective Bargaining 139-140 (2d ed. 1986); it may differ from bargaining only in degree, see 1 Hardin, supra, at 691-696; Taft Broadcasting Co., 163 N. L. R. B., at 478; it may be manipulated by the parties for bargaining purposes, see Bonanno Linen, supra, at 413, n. 8 (parties might, for strategic purposes, "precipitate an impasse"); and it may occur several times during the course of a single labor dispute, since the bargaining process is not over when the first impasse is reached, cf. J. Bartlett, Familiar Quotations 754:8 (16th ed. 1992). How are employers to discuss future bargaining positions during a temporary impasse? Consider, too, the adverse consequences that flow from failing to guess how an antitrust court would later draw the impasse line. Employers who erroneously concluded that impasse had not been reached would risk antitrust liability were they collectively to maintain the status quo, while employers who erroneously concluded that impasse had occurred would risk unfair labor practice charges for prematurely suspending multiemployer negotiations.
For these reasons, we hold that the implicit ("nonstatutory") antitrust exemption applies to the employer conduct at issue here. That conduct took place during and immediately after a collective bargaining negotiation. It grew out of, and was directly related to, the lawful operation of the bargaining process. It involved a matter that the parties were required to negotiate collectively. And it concerned only the parties to the collective bargaining relationship.

Our holding is not intended to insulate from antitrust review every joint imposition of terms by employers, for an agreement among employers could be sufficiently distant in time and in circumstances from the collective bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process. See, e.g., 50 F. 3d, at 1057 (suggesting that exemption lasts until collapse of the collective bargaining relationship, as evidenced by decertification of the union); El Cerrito Mill & Lumber Co., 316 N. L. R. B., at 1006-1007 (suggesting that "extremely long" impasse, accompanied by "instability" or "defunctness" of multiemployer unit, might justify union withdrawal from group bargaining). We need not decide in this case whether, or where, within these extreme outer boundaries to draw that line. Nor would it be appropriate forus to do so without the detailed views of the Board, to whose "specialized judgment" Congress "intended to leave" many of the "inevitable questions concerning multiemployer bargaining bound to arise in the future." Buffalo Linen, 353 U. S., at 96 (internal quotation marks omitted); see also Jewel Tea, 381 U. S., at 710, n. 18.

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