How does the union go about proving to the NLRB that the league did not bargain in good faith?
There are two options the union would take in trying to prove its case:

OPTION #1) The union could try to show there were various deceptive tactics that the league employed during the bargaining process which were indicative of bad faith. If the union can convince the NLRB that the owners engaged in deception of some kind, (e.g.: that the union was "set up" to look bad in the Feb. 19 labour talks in New York City that involved Wayne Gretzky and Mario Lemieux), that in and of itself could be indicative of bad faith.

OPTION #2) Another tactic the union could take would be to introduce evidence (such as transcripts of past negotiating meetings between the two sides) that describes the bargaining process as it unfolded and outlines the proposals, counter-proposals, and negotiating tactics that the parties have taken. By doing this, the union would try to convince the NLRB that there was a prospect for further negotiation and that they were not deadlocked on the critical issues (salary cap, free agency, salary arbitration, etc.), as a means of showing that the league did not bargain in good faith.

How long will it take before the NLRB issues a ruling?
That depends.

If the union's complaint goes forward, the case could go in one of two ways:

SCENARIO #1) The General Counsel's office of the NLRB will conduct a formal hearing (which would likely last four weeks) presided over by an administrative law judge a month or two after the NHLPA's complaint was filed.

This is where this relatively slow, cumbersome procedure begins to unfold. All the relative parties (Gary Bettman, Bob Goodenow et al) would be subpoenaed and the judge would be listening to their testimony, as well as reviewing written transcripts of the negotiating sessions between the two sides.

Once all the evidence is presented, the hearing will conclude and both sides will have approximately 30 days to file a brief, a document that outlines their argument in full and the decision they want from the judge. Once completed, the judge will then make a ruling. By this time, four or five months will have elapsed since the union filed its complaint.

The administrative judge's ruling can be appealed to the NLRB's five-member board in Washington, adding several more months to the procedure. Once the board rules, that decision can be appealed to the Circuit Courts of Appeals, which is the level immediately below the U.S. Supreme Court.

At this point, the procedure likely will have have dragged on anywhere from 12 to 18 months. Once the Circuit Court of Appeals rules, either side can file a petition with the U.S. Supreme Court to review the issue. Traditionally, the majority of these petitions are denied, but just filing the petition and having the U.S. Supreme Court decide whether it will hear the case adds several more months to the procedure.

If the review process is pursued to the fullest and it gets to the point where either side is in a position to file a petition to the U.S. Supreme Court, it could be more than two years before a final decision is made.

SCENARIO #2) A lengthy hearing could be avoided if the NLRB decides to seek an immediate injunction in federal court.

Under this scenario, the NLRB would go directly into federal district court and seek an injunction under Section 10(j) of the National Labor Relations Act. By doing this, the NLRB could restrain the owners from unilaterally implementing a new economic system while the matter continues before the Board.

This is to the union's advantage because the NLRB's administrative and judicial process otherwise moves so slowly and its rulings can be appealed that the case won't likely be finally resolved until a year or two down the road (see scenario #1). The NLRB would only seek an injunction if it felt that the normal procedure would erode the effectiveness of any remedy it would hand down at the conclusion of a lengthy hearing.

If the NLRB seeks an injunction, it also means that the NHL's recently expired collective bargaining agreement would immediately go into effect until it's determined that the union and league have legitimately bargained to the point of impasse. This is because, under U.S. labour law, there's an obligation always to preserve the existing terms and conditions of employment which flow from the CBA that's expired, whether it's in existence or not, until the parties bargain to the point of impasse. And so, if in fact, they haven't bargained to the point of impasse, then both sides must abide by the terms and conditions contained in the old CBA.

However, it's important to remember that NLRB members are appointed by the President of the United States and the current Board (all President Bush appointees) is very conservative and considered pro-employer. The NLRB, under the administration of former U.S. President Bill Clinton, invoked this injunction more than 10 times compared to the number of times it is used by the current Board. Therefore, it's not a given the NLRB would circumvent the normal procedure and try to go directly into federal district court.

If, when all is said and done, the ruling comes down that the NHL did not bargain in bad faith and can therefore impose new terms and conditions of employment, is the union then out of options?
No. Most labour law experts believe the union could take one of two actions.

OPTION #1)The players could simply go on strike and refuse to play.

Under this scenario, the players would simply choose not to accept the new terms and conditions of employment imposed by the NHL and walk out. Doing this, however, would open the door for the owners to use replacement players.

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.

Whenever pro sports teams get together and establish rules constraining the mobility of players from one club to another, there is the potential for violation of anti-trust laws.

However, what has saved team owners in the past is the labour-exemption to the anti-trust laws. The labour exemption means if owners negotiate the conditions of employment with a union via the normal collective bargaining process, then they are immune from anti-trust violations.

By decertifying itself or going out of business, however, the NHLPA would not be bound by the new terms and conditions of employment implemented by the NHL and the labour exemption would no longer be available to the league: basically, if there's no collective bargaining process, then the owners no longer have immunity from anti-trust violations.

In the late 1980s, the NFL Players' Association decertified itself and sued the owners on anti-trust violations. The players were successful in convincing the owners through these anti-trust lawsuits that the expensive litigation process was cost prohibitive and not in their best interests. The NFL owners realized that the only thing they could do to make sure they were immune from future anti-trust suits was to head back to the collective bargaining table and bring the union back into existence. By doing this, the owners re-established the pre-requisite for getting a labour exemption from the anti-trust laws.

Decertifying is a drastic measure, however. It could cause major organizational problems for the NHLPA, not to mention decertified players could simply decide to play under the NHL's new system.

Another problem about decertification is the question that will arise as to whether the union is engaging in a sham tactic. The league could argue that by decertifying itself, the NHLPA is engaging in deceitful ploy and that it intends to reform itself once a new CBA is in place. This question of whether or not decertification is a sham tactic has never been litigated to the appellate level, but the NHL could decide to pursue the matter in court.

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