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NHLPA exec board asks players to empower PA dissolution; NHL files w/Fed court+NLRB

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12-14-2012, 10:53 PM
  #151
haseoke39
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Originally Posted by Dado View Post
If players truly don't want to be in a union, they won't be, as no court in the land can force a union to keep existing beyond a limited timeframe with proscribed functionality.

If the players really are serious about this - and I have no idea if they are or aren't - decertification will happen.
Yeah, but let's be real. Everyone knows the players want to be in a union and that they're using decertification as a bargaining ploy. Just filing the paperwork doesn't make decertification legal. That's exactly how the court will look at it.

So of course the players have the power to decertify, but for the court to recognize it, you'd need some things to happen first that would make it look credible: the players would need to probably vote down a few offers, make a lot of public comments about how unionization had failed them, have a big press conference or two where they tell the world that from now on, they're going to be individuals and have no desire to remain unionized or collectively bargain. I'm dead serious. The court will look at all this, because a court's job is to enforce the meaning of the law, and the meaning of the law doesn't allow you to use anti-trust as a bargaining tactic, so they'll sniff the players long and hard and say, "if they smell just like a union, why the hell should the fact that they've filed some paperwork mean that they get to effectively break the law?"

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12-14-2012, 10:55 PM
  #152
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Originally Posted by Canadian Guy View Post
I read through a bit of the document the NHL filed in the New York court.

I am no lawyer but I know there are quite a few posters who understand it rather well, can anyone entertain a scenario where the court would not, at the very least, agree that the disclaimer of interest would be disingenuous?
I can't.

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12-14-2012, 10:57 PM
  #153
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Everyone knows...
I don't know that.

The courts can't force a union to continue existing. If the players really want to do this, they can't be stopped. They may have to sign a CBA first, they may have to play out whatever is left of this season, even, possibly.

But if this is the path they want, it's the path they'll get.

 
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12-14-2012, 11:01 PM
  #154
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Originally Posted by haseoke39 View Post
The PA can absolutely have the vote and absolutely call themselves "decertified," put up a big sign on their front lawns, tweet it to their followers, make their facebook status "we decertified today," whatever, but if the PA wants a court to then entertain the subsequent anti-trust suit, they have to have the court first agree that they're actually, legally decertified. And they can't be legally decertified if they're only pretending to decertify to get bargaining leverage, which is what a court would almost certainly find. So the NHL isn't trying to stop the vote, isn't trying to make the PA do anything. It's asking the court to essentially rule ahead of time that the decertification vote won't hold up in court if the players try to later bring an anti-trust suit on the presumption that they're no longer a union. And the reason is that, since day 1, high-school educated players have been spouting off saying that decertification is a bargaining tactic (that in addition to a million other things).
I think you may be confusing the jurisdiction and overlap of the sets of laws that govern this process-- labor vs antitrust.

You cannot force people who decide they do not want to be represented by a union to be in a union. Who would answer the phone if indeed a union decertified and disbanded?

Edit: see kdb's explanation.

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12-14-2012, 11:02 PM
  #155
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Originally Posted by Dado View Post
I don't know that.

The courts can't force a union to continue existing. If the players really want to do this, they can't be stopped. They may have to sign a CBA first, they may have to play out whatever is left of this season, even, possibly.

But if this is the path they want, it's the path they'll get.
If the players formally de-certify, then there is no CBA. Plain and simple. What the owners are stopping is a ridiculous disclaimer of interest which would state that Fehr no longer is interested in representing the players. While it is the owner's right to do this, this is yet another bully move by the owners to try to prevent the players from exercising their rights.

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12-14-2012, 11:03 PM
  #156
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Quote:
Originally Posted by Dado View Post
I don't know that.

The courts can't force a union to continue existing. If the players really want to do this, they can't be stopped. They may have to sign a CBA first, they may have to play out whatever is left of this season, even, possibly.

But if this is the path they want, it's the path they'll get.
Sure they can decertify but what good would it do if the courts don't recognize it as a legitimate option? They would be without a union and have gained nothing in regards to the CBA talks right?

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12-14-2012, 11:05 PM
  #157
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Originally Posted by Canadian Guy View Post
Sure they can decertify but what good would it do if the courts don't recognize it as a legitimate option? They would be without a union and have gained nothing in regards to the CBA talks right?
What CBA?

This lawsuit would prevent the PA from suing the league for an illegal lockout.

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12-14-2012, 11:05 PM
  #158
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If the players formally de-certify, then there is no CBA. Plain and simple.
Yes. I'm simply saying that while a move towards decertification may not be enough to convince a court to lift the lockout, the decertification process itself cannot be stopped by anyone but the players themselves.

 
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12-14-2012, 11:07 PM
  #159
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Originally Posted by Fugu View Post
On a percentage basis, it's still meaningless. The Disclaimer of Interest is the union leadership saying they no longer wish to represent the players. Decertification, on the other hand, would require 30% of the members to vote to decertify, and then an NLRB-sponsored vote would need a majority approval.

The NHL can cite a handful of players and their tweets, but IF there is a vote by a majority of members to pursue some action, I don't see how you can cite say 20-30 tweeters as somehow being representative of the the PA overall.

Naming the negotiating committee in the suit is interesting though. Did they show up and negotiate? Yes, indeed. As the IU professor above said, taking an extreme position isn't grounds to say the league did not negotiate in good faith, so how do say the same of the PA? Heck, they can show proposal after proposal after proposal that got a ten minute look, and declined. They can probably make a case that having a union no longer helps them and in fact, may hurt them collectively.
Yeah, but they have players as well as Fehr himself intimating that the union is considering decertification as a tool.

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12-14-2012, 11:09 PM
  #160
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Yeah, but they have players as well as Fehr himself intimating that the union is considering decertification as a tool.
And if they weren't considering it, they wouldn't be doing their jobs. I can almost assure you that the NHL has considered unilaterally enforcing a CBA. They won't unless the PA does a DOI, because it is their nuclear option, but they have definitely considered it.

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12-14-2012, 11:11 PM
  #161
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Originally Posted by Bjindaho View Post
If the players formally de-certify, then there is no CBA. Plain and simple. What the owners are stopping is a ridiculous disclaimer of interest which would state that Fehr no longer is interested in representing the players. While it is the owner's right to do this, this is yet another bully move by the owners to try to prevent the players from exercising their rights.
Prevent players from exercising their rights?

You do realize that their exercising of rights is a pure negotiation tactic? The very same thing that the owners just did?

MOD


Last edited by Fugu: 12-14-2012 at 11:23 PM. Reason: let's not resort to personal shots
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12-14-2012, 11:11 PM
  #162
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Originally Posted by Bjindaho View Post
What CBA?

This lawsuit would prevent the PA from suing the league for an illegal lockout.
The CBA they are trying to get done!

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12-14-2012, 11:12 PM
  #163
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Originally Posted by Canadian Guy View Post
can anyone entertain a scenario where the court would not, at the very least, agree that the disclaimer of interest would be disingenuous?
It's not clear if the Courts even look at the fact a disclaimer of interest is disingenuous or not... You'll find the position that it's irrelevant. In Feldman's text that's been posted on this board:

"The motivation of the players in deciding to dissolve their union is irrelevant...
"The NLRB’s General Counsel has concluded that “the fact that the disclaimer was motivated by ‘litigation strategy,’ i.e., to deprive the NFL of a defense to players’ antitrust suits . . . is irrelevant so long as the disclaimer is otherwise equivocal and adhered to.” In re Pittsburgh Steelers, No.6-CA-23143, 1991 WL 144468, at *2 n.8
(N.L.R.B June 26, 1991)."


http://lawreview.law.ucdavis.edu/iss...-4_Feldman.pdf

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12-14-2012, 11:12 PM
  #164
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I don't have the time or the interest to understand the details of this ongoing crap. My nose tells me that these owners and their lawyers as well the PA and their lawyers are just smart enough to completely screw each other.

In the end the only winners will be the lawyers. This should not surprise anyone with half a brain.

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Old
12-14-2012, 11:15 PM
  #165
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Originally Posted by Erik Estrada View Post
It's not clear if the Courts even look at the fact a disclaimer of interest is disingenuous or not... You'll find the position that it's an irrelevant point In Feldman's text that's been posted on this board:

"The motivation of the players in deciding to dissolve their union is irrelevant...
"The NLRB’s General Counsel has concluded that “the fact that the disclaimer was otivated by ‘litigation strategy,’ i.e., to deprive the NFL of a defense to players’ antitrust suits . . . is irrelevant so long as the disclaimer is otherwise equivocal and adhered to.” In re Pittsburgh Steelers, No.6-CA-23143, 1991 WL 144468, at *2 n.8
(N.L.R.B June 26, 1991)."


http://lawreview.law.ucdavis.edu/iss...-4_Feldman.pdf
Should have used a different word, I meant disingenuous in this case as "using decertification/disclaimer as a negotiating tactic instead of it's intended use" (something I would qualify as disingenuous, but we are now in the legal domain so I should have been more precise)

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12-14-2012, 11:21 PM
  #166
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Prevent players from exercising their rights?

You do realize that their exercising of rights is a pure negotiation tactic? The very same thing that the owners just did?

No, you're not biased or anything.
The owners filed a lawsuit trying to have a court deem that a disclaimer of interest would be invalid (despite the fact that none has been filed). The union has a right to file it (even if it is frivolous). The league doesn't really have a right to preempt it (that'd be like filing a lawsuit trying to have a strike deemed illegal before the workers went on strike).

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12-14-2012, 11:22 PM
  #167
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Originally Posted by Canadian Guy View Post
Should have used a different word, I meant disingenuous in this case as "using decertification/disclaimer as a negotiating tactic instead of it's intended use"
The NHL would need to convince the Court that:
1- "Using decertification/disclaimer as a negotiating tactic instead of it's intended use" is relevant.
2-If it's relevant... That the Players did in fact use it "as a negotiating tactic instead of it's intended use"

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12-14-2012, 11:23 PM
  #168
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The CBA they are trying to get done!
If the players formally de-certify, there is no PA, no CBA and no lockout. They start playing right away. There'd be lots of lawsuits, but hockey would start (of course, de-certification itself would take months).

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12-14-2012, 11:27 PM
  #169
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Originally Posted by Erik Estrada View Post
The NHL would need to convince the Court that:
1- "Using decertification/disclaimer as a negotiating tactic instead of it's intended use" is relevant.
2-If it's relevant... That the Players did in fact use it "as a negotiating tactic instead of it's intended use"
EDIT: nevermind, I had misread what you had previously quoted. My bad, looks like I need to read this thing a bit more carefully!


Last edited by Do Make Say Think: 12-14-2012 at 11:33 PM.
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12-14-2012, 11:29 PM
  #170
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IIRC, didn't the NFLPA use a DOI? If that is the case, then they are still a union in the middle of CBA negotiations (regardless of who is negotiating).

If they fully dissolve, then there is no labor dispute (because there is no union to negotiate).
No. The Norris-LaGuardia act defines "labor dispute" very broadly - it is not restricted to collective bargaining situations.

From Judge Colloton's ruling in Brady v NFL:

Quote:
The text of the Norris-LaGuardia Act and the cases interpreting the term “labor
dispute” do not require the present existence of a union to establish a labor dispute.
Whatever the precise limits of the phrase “involving or growing out of a labor
dispute,” this case does not press the outer boundary. The League and the players’
union were parties to a collective bargaining agreement for almost eighteen years
prior to March 2011. They were engaged in collective bargaining over terms and
conditions of employment for approximately two years through March 11, 2011. At
that point, the parties were involved in a classic “labor dispute” by the Players’ own
definition. Then, on a single day, just hours before the CBA’s expiration, the union
discontinued collective bargaining and disclaimed its status, and the Playersfiled this
action seeking relief concerning industry-wide terms and conditions of employment.
Whatever the effect of the union’s disclaimer on the League’s immunity from
antitrust liability, the labor dispute did not suddenly disappear just because the
Players elected to pursue the dispute through antitrust litigation rather than collective
bargaining.

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12-14-2012, 11:30 PM
  #171
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Originally Posted by Canadian Guy View Post
I understand that, but I can't fathom a scenario where the courts would not side on the NHL's side regarding this issue. I was wondering if someone could see an avenue the PA could take to defend themselves on those counts.
I'm not so sure the court will even bother to rule. Recent cases have shown a reluctance on the court's part to have any part in the dispute. If it's anti-trust or not will be decided in an anti-trust lawsuit, not in a thinly veiled "we're not a union anymore" tactic.

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12-14-2012, 11:32 PM
  #172
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Originally Posted by Bjindaho View Post
The owners filed a lawsuit trying to have a court deem that a disclaimer of interest would be invalid (despite the fact that none has been filed). The union has a right to file it (even if it is frivolous). The league doesn't really have a right to preempt it (that'd be like filing a lawsuit trying to have a strike deemed illegal before the workers went on strike).
That's not what the NHL claim is at all. The league is saying that the PA has discussed disclaiming interest purely for the sake of negotiating leverage and as a result, it shouldn't affect the legality of the NHL lockout.

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12-14-2012, 11:33 PM
  #173
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No. The Norris-LaGuardia act defines "labor dispute" very broadly - it is not restricted to collective bargaining situations.

From Judge Colloton's ruling in Brady v NFL:
But that expressly states that they used a disclaimer of interest and that the claim was rejected because their argument is that they "suddenly" weren't in a labour dispute anymore.

If the PA decides to fully de-certify, it is possible for them to touch on all the landmarks necessary to show a gradual deterioration from a labour dispute to an untenable relationship.

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12-14-2012, 11:37 PM
  #174
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That's not what the NHL claim is at all. The league is saying that the PA has discussed disclaiming interest purely for the sake of negotiating leverage and as a result, it shouldn't affect the legality of the NHL lockout.
But how can a court rule on whether or not the players intentions today or in the future are a negotiating ploy? They are attempting to block one of the players legal recourses.

Note: I do not support either option. I am simply concerned that the league tried to pre-emptively strike against something that a) couldn't work, b) would likely have crushed the PA and c) might in and of itself be considered anti-trust (trying to prevent their employees from using their labour rights and further destroying the relationship).

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12-14-2012, 11:41 PM
  #175
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Originally Posted by HockeyCrazed101 View Post
That's not what the NHL claim is at all. The league is saying that the PA has discussed disclaiming interest purely for the sake of negotiating leverage and as a result, it shouldn't affect the legality of the NHL lockout.
Does this not

Quote:
"The motivation of the players in deciding to dissolve their union is irrelevant...
"The NLRB’s General Counsel has concluded that “the fact that the disclaimer was motivated by ‘litigation strategy,’ i.e., to deprive the NFL of a defense to players’ antitrust suits . . . is irrelevant so long as the disclaimer is otherwise equivocal and adhered to.” In re Pittsburgh Steelers, No.6-CA-23143, 1991 WL 144468, at *2 n.8
(N.L.R.B June 26, 1991)."
Go against what you are saying?

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