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INDEPTH:
NHL LABOUR STRIFE > FEATURES
The road to impasse Everything you ever wanted to know about the NHL declaring an impasse but were afraid to ask.
CBC Sports Online | Last updated March 4, 2005
NHL commissioner Gary Bettman could declare
an impasse and implement a new salary-cap system. (AP Photo) |
When NHL commissioner Gary Bettman officially
cancelled the 2004-05 season on Feb. 16, the majority of fans, players,
owners and media asked the same question: what now?
Most expect the league and the NHL Players' Association will eventually
head back to the negotiating table. However, if the two sides can't
hammer out a new collective bargaining agreement, Bettman could
formally declare an impasse and institute a new economic system
that includes a salary cap.
So, then, all the NHL has to do is negotiate a little with the NHLPA,
walk away from the bargaining table and declare an impasse in order
to get a salary cap, right?
If only it were that easy.
CBC Sports Online recently spoke with William
Gould, a former chairman of the National Labor Relations
Board (NLRB), about the issue of impasse.
The NLRB is an independent federal agency created by the U.S. Congress
in 1935 to administer and enforce the National Labor Relations Act
(NLRA). The NLRA is the primary law governing relations between
unions and employers in the private sector in the U.S., and guarantees
the right of employees to organize and to bargain collectively with
their employers.
Gould served as chairman of the NLRB for four years - including
during the 1994 Major League Baseball strike - and outlined to Sports
Online the potentially arduous procedure the NHL must follow in
order to declare an impasse and implement a new economic system
- a procedure that if exhausted to the fullest with hearings and
appeals could take in excess of two years.
So what exactly does it take for the NHL to get to impasse? Sports
Online dispels the myths and answers your questions below.
What is meant by "impasse"?
Impasse is an official position taken by a company once it believes
it has reached a deadlock in the collective bargaining process with
a workers' union over a new collective bargaining agreement.
What happens if the NHL declares it is at an impasse with the
NHL Players' Association?
If the NHL feels it can't come to terms with the players' union
on a new CBA, the league could then declare an impasse and unilaterally
change the terms and conditions of employment (instead of negotiating
a new CBA with the NHLPA) by implementing a new economic system
that includes a salary cap.
So, the NHL players would have to play
under this new salary-cap system?
Not necessarily. If the NHL unilaterally implements a new econmoic
system, it's expected that the players' union would challenge such
a move by filing a charge with the NLRB, accusing the league of
bargaining in bad faith.
What happens once the NHLPA goes to the NLRB?
The players' union would carry the burden of proving to the NLRB
that the NHL did not bargain in good faith during the collective
bargaining process. If the NLRB rules in the union's favour and
finds that the league did not bargain in good faith (thus demonstrating
the two sides are not at an impasse), the league would be prevented
from implementing its new economic system. As a result, the NHL
and NHLPA would have to return to the negotiating table to try hammer
out a new collective bargaining agreement.
I thought the NHL had to get approval from the NLRB to declare
an impasse?
That's a myth. There's an erroneous assumption that has crept
into some media reports that the NHL would go to the NLRB to seek
some sort of certification of impasse. The NLRB can only get involved
in this matter if the NHLPA files a 'bad faith' complaint in response
to the league unilaterally implementing a new economic system.
But doesn't the NHL have to get approval from the NLRB to use
replacement players?
No, that's another myth. The use of replacement players is an
entirely separate issue that doesn't involve the NLRB. There's nothing
about the issue of impasse that relates to the use of replacements.
The NHL would likely face other legal challenges based on Canadian
provincial labour laws if it tried to use replacement players, but
the NLRB can't prevent the NHL from doing so.
How does the union go about proving to the NLRB that the league
did not bargain in good faith?
The union has two main options:
OPTION #1) The union could try to prove there were various deceptive
tactics that the league employed during the bargaining process which
were indicative of bad faith.
(FULL
EXPLANATION)
OPTION #2) The union could introduce evidence that fully describes
the bargaining process.
(FULL
EXPLANATION)
How long will it take before the NLRB issues a ruling?
That depends.
If the players' union files its charge, a regional district office
of the NLRB will investigate the complaint. The local office (in
this case, it will likely be the New York City office because that's
where the NHL's headquarters are located) will probably consult
the General Counsel's office of the NLRB in Washington, D.C., in
making its ruling. On average, the field office takes a month before
issuing a decision, but it could expedite the matter because of
the high visibility of the case.
The field office's decision can be appealed by the league or the
players' union to the NLRB's office of appeals in the General Counsel's
office. This final decision can't be appealed, so if the office
of appeals rules in favour of the league, the NHLPA's case would
end right then and there. The NHL would then be able to impose a
new economic system that closely resembles - but is not necessarily
identical to - their last offer at the bargaining table, as determined
by the NLRB.
If, however, the office of appeals rules in favour of the NHLPA,
the union's complaint would then go to the General Counsel's office.
If the union's complaint moves forward, the case could go in one
of two ways:
SCENARIO #1) The General Counsel's office will conduct a formal
hearing. Here, the relatively slow and cumbersome procedure begins
to unfold and if the process is pursued to the fullest it could
be more than two years before a final decision is issued.
(FULL
EXPLANATION)
SCENARIO #2) A lengthy hearing could be avoided if the union can
convince the NLRB to seek an injunction in federal court.
(FULL
EXPLANATION)
If, when all is said and done, the ruling comes down that the
NHL did not bargain in bad faith and can therefore implement its
new economic system, is the union out of options?
No. Most labour experts believe the union could do one of two things:
OPTION #1) The players could simply go on strike and refuse to play.
(FULL
EXPLANATION)
OPTION #2) The NHLPA could decertify itself (essentially go out
of business) and sue the owners under anti-trust laws in the name
of individual players.
(FULL
EXPLANATION)
What about Canadian labour law? Does it come into play here,
or is the matter of "impasse" strictly for the NLRB to
decide?
Canadian labour laws fall under provincial jurisdiction and
each province has its own code of standards and practices. Canadian
labour law does not have a legal concept of impasse per se, so Canadian
labour boards do not have to honour or recognize the NLRB's decision.
However, many Canadian legal experts believe that the NHL would
likely have a much easier time trying to implement a new economic
system in Canada than they'll have in the U.S.
This is because the pressing issue - as it pertains to Canadian
labour law - is the owners' right to use replacement players, not
whether there is an impasse.
Of the four provinces that have an NHL team, Quebec and B.C. have
labour laws in place that do not allow an employer to use replacement
workers.
Some experts believe this could prevent the Montreal Canadiens and
Vancouver Canucks from using replacement players. Others say NHL
owners could argue that players in Canada are not their employees,
but instead 'independent contractors' who are not covered by the
labour code.
NHL players aren't covered under the province's labour code in Quebec,
and the NHLPA isn't certified as a union in B.C.
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