Kukla's Korner

Kukla's Korner Hockey

NHL Files Class Action Complaint And Unfair Labor Practice Charge

NEW YORK (December 14, 2012) -- Today, in response to information indicating that NHL Players have or will be asked to vote to authorize the National Hockey League Players' Association's Executive Board to proceed to "disclaim interest" in continuing to represent the Players in collective bargaining, the National Hockey League filed a Class Action Complaint in Federal Court in New York seeking a Declaration confirming the ongoing legality of the lockout.

Simultaneously with the filing of its Complaint, the NHL also filed an Unfair Labor Practice Charge with the National Labor Relations Board alleging that by threatening to "disclaim interest," the NHLPA has engaged in an unlawful subversion of the collective bargaining process and conduct that constitutes bad faith bargaining under the National Labor Relations Act.

Filed in: NHL Talk, NHLPA, | KK Hockey | Permalink
 

Comments

Avatar

threat and counter threat….something will break soon, one way or the other.

Posted by timbits on 12/14/12 at 06:06 PM ET

J.J. from Kansas's avatar

Yep. The choreography hasn’t changed, just the tempo.

Posted by J.J. from Kansas on 12/14/12 at 06:14 PM ET

Avatar

Gary Bettman decided to take the NHL to a new low.

Posted by FlyersFan on 12/14/12 at 06:32 PM ET

Paul From Cali's avatar

Gary Bettman decided to take the NHL to a new low.

No, sorry but the new low will be the cancellation of the 2012-2013 season.  But with the courts now involved I don’t think we’re more then days away from that low being achieved.

And speaking of new lows, what about the NHLPA supposedly negotiating “in good faith” all this time, and now they’re threatening to basically walk away from the players themselves.  How’s that for a low?

Posted by Paul From Cali on 12/14/12 at 06:41 PM ET

Avatar

does negotiating “in good faith” include take it or leave it deals?

Posted by FlyersFan on 12/14/12 at 06:43 PM ET

J.J. from Kansas's avatar

what about the NHLPA supposedly negotiating “in good faith” all this time, and now they’re threatening to basically walk away from the players themselves.  How’s that for a low?

1. they haven’t actually threatened decertification. They let it be known that their executive board approved the mechanism for all the players to vote for doing that.

2. Disclaiming interest isn’t so much as the NHLPA abandoning its players. The disclaimer of interest is the NHLPA essentially saying that it’s not doing the players more good than letting them file lawsuits against the NHL would be able to do for them. It’s more about getting out of their way than leaving their backs.

Posted by J.J. from Kansas on 12/14/12 at 06:45 PM ET

SnLO's avatar

I don’t know why it took me so long to realize this but, the problem with the NHL is that it is a business being run by lawyers. Hey, I guess they know all the ins-and-outs of legal maneuvering; no wonder the business side of the league is so jacked-up.

Posted by SnLO from the sub great-white north on 12/14/12 at 06:56 PM ET

Down River Dan's avatar

It’s official, the league is now spending more money on lawyers fighting for a handful of teams who will never generate the revenue to pay for the attorneys the league is using to protect their right to exist so that these same teams can lose even more money during the term of the new labor agreement currently being fought over.

Posted by Down River Dan on 12/14/12 at 07:03 PM ET

HockeytownOverhaul's avatar

Posted by
     
    SnLO
     
    from the Empty Barn on Civic Center Drive on 12/14/12 at 05:56 PM ET

where have i seen this scenerio play out before??? hmmmm???

Posted by HockeytownOverhaul on 12/14/12 at 07:21 PM ET

Avatar

Not allowing your members to vote on a legitimate offer is an UNFAIR labor practice as defined. A Union must allow all members the opportunity to vote on a legitimate contract offer, or it can be considered as a Violation of the Taft-Hartley Act.

Posted by HatTrick on 12/14/12 at 07:51 PM ET

J.J. from Kansas's avatar

Posted by HatTrick on 12/14/12 at 06:51 PM ET

And all you have to do to prove that is to find a bunch of players willing to say that they asked for a vote and were denied the privilege.

Now to start actually producing those players…

Posted by J.J. from Kansas on 12/14/12 at 08:09 PM ET

Avatar

Sorry JJ but everybody knows this is not the case. Under Oath players would have testify truthfully, regardless of what Fehr, and the likes of Schneider have told them. Pretty easy to prove this, very tough for the PA to defend. Additionally the Court would ask to see the results of the vote as well.

Posted by HatTrick on 12/14/12 at 08:32 PM ET

J.J. from Kansas's avatar

Part of the questioning would be whether the players actually asked for a vote.

Just because the NHL tables an offer doesn’t mean the entire PA has to vote on it.  They had to vote as to whether to even take a vote for decertification.

“Did you vote on the proposal?” - “no.”

“Did you ask to vote?” - “no.”

Done deal.

Posted by J.J. from Kansas on 12/14/12 at 08:34 PM ET

Avatar

Again, that is not what is required you don’t understand the Taft Hartley ACT. IT has to been done, not offered done, if you want your Union to be legal. All players 700 would have to present a sworn affidavit that they gave up that right. Even Roman Hamrlik.

Posted by HatTrick on 12/14/12 at 08:42 PM ET

Avatar

Simultaneously with the filing of its Complaint, the NHL also filed an Unfair Labor Practice Charge with the National Labor Relations Board alleging that by threatening to “disclaim interest,” the NHLPA has engaged in an unlawful subversion of the collective bargaining process and conduct that constitutes bad faith bargaining under the National Labor Relations Act.

Looks like Ryan Miller, if he’s on the negotiating committee, gave the NHL everything they needed to remove disclaimer as a tactic in a tantrum to the Globe and Mail a month ago.

“After watching the other sport leagues go through labour disputes last year, it is apparent that until decertification is filed, there will not be any real movement or negotiation,” Miller wrote in an e-mail to The Globe and Mail. “Many things in our negotiation are very consistent with the NFL and NBA negotiations, and both of those leagues filed papers necessary to decertify.

“It seems like the players in any league are going to be subjected to the same scripted labour dispute developed by [NHL and NBA law firm] Proskauer Rose in all collective bargaining discussions now and in the future. Decertification becomes part of the script because Gary Bettman and the owners are trying to get a sense of how far they can push us and at some point we have to say ‘enough.’

“They want to see if we will take a bad deal because we get desperate or if we have the strength to push back. Decertification is a push back and should show we want a negotiation and a fair deal on at least some of our terms.”

Posted by larry on 12/14/12 at 08:44 PM ET

J.J. from Kansas's avatar

Ok. you clearly don’t know what you’re talking about, but it’s been fun chatting with you.

Posted by J.J. from Kansas on 12/14/12 at 08:45 PM ET

J.J. from Kansas's avatar

Posted by larry on 12/14/12 at 07:44 PM ET

It’s as much a charge that the NHL hasn’t negotiated in good faith as anything.

Posted by J.J. from Kansas on 12/14/12 at 08:47 PM ET

christpuncher's avatar

I don’t think there has been anything to vote on. The league has made proposals, but an actual writen draft of a CBA has never been produced as far as I know?

Posted by christpuncher from Detroit, MI on 12/14/12 at 08:49 PM ET

Avatar

It’s as much a charge that the NHL hasn’t negotiated in good faith as anything.

Posted by J.J. from Kansas on 12/14/12 at 07:47 PM ET

The problem with Miller’s comments isn’t who’s being blamed for what; it’s that he’s expressly stating that decertifying a union is a bargaining tactic being considered by a union to gain leverage in a collective bargaining situation. He’s saying the practice is a sham. A ploy. That he doesn’t really want to disband the union, rather, just to pretend to do so to increase the union’s bargaining power.

If Miller’s on the negotiating committee, I don’t see how anyone argues against the NHL’s “ploy” charge before a labor review board after they read this bit of evidence.

I expect, as of this labor negotiation, this is the last we’ll see of sports unions not imposing gag orders on their own membership during collective bargaining agreements.

Posted by larry on 12/14/12 at 09:01 PM ET

J.J. from Kansas's avatar

I expect, as of this labor negotiation, this is the last we’ll see of sports unions not imposing gag orders on their own membership during collective bargaining agreements.

Agree completely.

I think the Union waiting so long before going the route of seriously considering decertification will work in their favor, but Miller’s characterization as decertifying as a means to bargain is certainly something they’re going to have to overcome.

Posted by J.J. from Kansas on 12/14/12 at 09:06 PM ET

HockeytownOverhaul's avatar

I thought this WASNT a decertification.  I thought it was “informal” and really just gave the NHLPA brass the ability to stop representing the league if they feel they cannot go forward negotiating to get the players a deal they’d consider “fair”

Posted by HockeytownOverhaul on 12/14/12 at 09:31 PM ET

Avatar

Part of the questioning would be whether the players actually asked for a vote.

Just because the NHL tables an offer doesn’t mean the entire PA has to vote on it.  They had to vote as to whether to even take a vote for decertification.

“Did you vote on the proposal?” - “no.”

“Did you ask to vote?” - “no.”

‘Have you voted on any of the NHL’s proposals?  No.’

To go the decert/disclaim route without even voting on one proposal looks bad, JJ.  If it would be so unanimous, there’s little (relative) cost in having a full vote.

IMO it’s pretty weaksauce to take nothing to the members as a whole in a secret ballot.

I think the Union waiting so long before going the route of seriously considering decertification will work in their favor, but Miller’s characterization as decertifying as a means to bargain is certainly something they’re going to have to overcome.

If by ‘overcome’ you mean ‘figure out some way to make a statement which clearly supports the NHL’s charge to, uh, not’ then yeah.  They have to overcome it. wink

Miller screwed the NHLPA pretty good with that one.

I thought this WASNT a decertification.  I thought it was “informal” and really just gave the NHLPA brass the ability to stop representing the league if they feel they cannot go forward negotiating to get the players a deal they’d consider “fair”

It’s not being served with divorce papers, but your wife has been in Zumba classes for 8 weeks and just yesterday spent 2 hours in a room with an attorney who specializes in family law.

It’s not the punch, it’s the arm being pulled back.

The NHL had this as ready as they did because they knew that, eventually, the NHLPA would try something along these lines and they had Miller’s quote in the bag to prove their case.  They saw the NHLPA’s arm moving back, so they stepped into it and have now judo-flipped the issue and spun the NHLPA back against itself, legally.

Thanks to a player shooting off his mouth.  This is why so many big negotiation rooms are filled with lawyers.  They know where they can comment and where they cannot.

Posted by HockeyinHD on 12/15/12 at 05:42 AM ET

J.J. from Kansas's avatar

To go the decert/disclaim route without even voting on one proposal looks bad, JJ.  If it would be so unanimous, there’s little (relative) cost in having a full vote.

According to the NHL’s suit, there hasn’t been a proposal from the NHL since November 8th. The NHLPA has tabled two proposals to the NHL in that time.  If the NHL had actually tabled a counter to the last NHLPA proposal, there very well might have been a vote, but that didn’t happen.

If by ‘overcome’ you mean ‘figure out some way to make a statement which clearly supports the NHL’s charge

Clearly to you means something else (Perhaps you’re referring to the guy specifically named in the NHL’s suit as having said that “decertification will be looked at within days” to the Free Press? - Dan Clearly). Ryan Miller’s is the worst of the examples that the NHL cited, but the total of it is a weak bunch of whining from the NHL that members of the union saying that they’ve discussed decertification and that decertification is a known option to them constitute a threat to do so as a bargaining ploy.

Like I said, it’s not too far a stretch to view Miller’s comments as a show of frustration with the NHL’s bargaining tactics and, by extension, frustration with a process which forces players to bargain collectively when their best interests aren’t necessarily being served by such a process.

Posted by J.J. from Kansas on 12/15/12 at 09:41 AM ET

Paul's avatar

Sportsnet with the Class Action Complaint in PDF style and the Unfair Labor Charge.

Posted by Paul from Motown Area on 12/15/12 at 11:17 AM ET

redxblack's avatar

This is pretty crazy. A union getting deadlocked and threatening to disengage is a violation of good faith, but locking out players isn’t? Take it or leave it offers aren’t? Leaving g offers on the table with hours long deadlines are okay?

I’ve been involved in a few ULPs, and this will get tossed as having no merit.

As far as a vote, tabled offers are not required a full member vote. Offers that pass the negotiating committee are eligible for a full member vote. For this to violate the Taft Hartley act, a member must request the executive board to circumvent the negotiating committee and bring up an offer to the membership. That would be in the board’s minutes and would be evidence. No evidence, no case.

Posted by redxblack from Akron Ohio on 12/15/12 at 11:25 AM ET

Avatar

According to the NHL’s suit, there hasn’t been a proposal from the NHL since November 8th. The NHLPA has tabled two proposals to the NHL in that time.  If the NHL had actually tabled a counter to the last NHLPA proposal, there very well might have been a vote, but that didn’t happen.

Speaking of weaksauce.  So, the NHL made something like 6 or 7 different sequential proposals and the NHLPA took nary a one of them to their members for a vote before deciding to decertify as a Union... but man, if only the NHL had made a 7th or 8th offer,  Then, maybe, the NHLPA would have actually had the membership vote on it.

Alrighty then.

Ryan Miller’s is the worst of the examples that the NHL cited, but the total of it is a weak bunch of whining from the NHL that members of the union

Not just members of the Union, JJ.  Members of the negotiating committee.  A) big difference and b) even if it was ‘just’ members of the Union strutting around and being chesty about this tactic, that’s still enough to set themselves up for a nice high hard one from the legal system.

Like I said, it’s not too far a stretch to view Miller’s comments as a show of frustration with the NHL’s bargaining tactics and, by extension, frustration with a process which forces players to bargain collectively when their best interests aren’t necessarily being served by such a process.

Sure.  The problem is that it’s a lot less of a stretch to just read the words as they were spoken, by Miller and also by others, and be able to conclude that they view/viewed decert/disclaim as a negotiating ploy.

Which is what the NHL’s suit contends.

This is why Miller was an idiot.  His choice of words lined he and his Union up for a real solid smack.  A lawyer would have been much more either precise in his answer or evasive in his answer and avoided such an obvious fumble.

When primary parties who are also non-lawyers run their lips about big-time stuff like this, disaster almost always ensues.

This is pretty crazy. A union getting deadlocked and threatening to disengage is a violation of good faith, but locking out players isn’t?

Not when there is no valid CBA, no.  If there was a year or more remaining on the CBA and the NHL locked the players out anyway… then yes.  That’s a bad faith act.

As far as a vote, tabled offers are not required a full member vote.

I don’t believe anyone has said or suggested that a member vote was required.  What I’ve said, anyway, is that for the first full member vote to be one to blow up their own Union looks pretty weak.

Hey, maybe the NHL’s last offer goes down in flames 90-10%.  Entirely possible.  Still, I’d rather have seen that vote and the rejection happen than have the negotiating committee decide that the only vote they’ll take from the members is the one to stop being a Union.

Secret ballots are odd things.  When you have them and people can vote anonymously, you find out that public posture and private intent don’t always line up with each other.

Which is almost certainly why the NHLPA won’t allow the vote to happen.  They can claim complete solidarity and unanimity now, but if a vote is taken and the results leak (which they of course would) then unless the vote actually is 90-10% the NHLPA starts looking weaker.

No upside in it for them.

Posted by HockeyinHD on 12/15/12 at 07:19 PM ET

J.J. from Kansas's avatar

it was ‘just’ members of the Union strutting around and being chesty about this tactic, that’s still enough to set themselves up for a nice high hard one from the legal system.

Eyeroll.

Sure.  The problem is that it’s a lot less of a stretch to just read the words as they were spoken, by Miller and also by others, and be able to conclude that they view/viewed decert/disclaim as a negotiating ploy.

For somebody so practiced in reading words that aren’t actually there, I wouldn’t expect this to be a difficult task. You nailed it with aplomb though.

I don’t believe anyone has said or suggested that a member vote was required.

How can you not believe this? It actually happens in this very comments section. Boy, that’s thick.

There’s nothing wrong with the Union not having voted on any of the offers that were tabled (especially when you consider what those offers from November 8th and prior actually were). Their negotiating committee put out a counter to each and every one of them and saw them rejected by the NHL.

I could just imagine what this lawsuit would content if the NHLPA had conducted a secret ballot on October 17th and it had come back with the 99% against vote you and I both know it would have.  Great, so now the union is negotiating in bad faith because they hate the offer too much!  It’s a conspiracy!

yawn.

Posted by J.J. from Kansas on 12/15/12 at 07:48 PM ET

Avatar

Eyeroll.

I know it bums you out, JJ.  Don’t take it so hard.  The players did something dumb, and it will likely cost them.  Oh well.

For somebody so practiced in reading words that aren’t actually there,

... says the guy who constantly misrepresents what other people post, and then argue with his misrepresentations, and then pretends his misrepresentations are what happened.

Yikes.

There’s nothing wrong with the Union not having voted on any of the offers that were tabled

Case in point, in fact.

I didn’t say there was anything wrong with the Union not voting on anything up until they decided to vote on not being a Union anymore.  You’re trying to make an idiotic strawman argument.  Again.

I said it looks bad.  And it does look bad.  It’s not illegal, or even bad strategy.  It just looks bad.  It looks like they figured they’d end up where they ended up.  The players saying they figured they’d end up where they ended up suggests this was a prevalent view as well.

Lots of things that have happened in this negotiation look bad, but were neither illegal or even bad strategy.

Their negotiating committee put out a counter to each and every one of them and saw them rejected by the NHL.

‘Rejected by the NHL’.  What does that mean?  As in, specifically.  How is an offer which is given to the NHL rejected?  Were they all rejected in the same way?

What we’ve run into here is another case of you making a foolish assumption.  It’s entirely likely that the NHL is able to get pretty quick up or down from their member-owners on these things.  As far as you are aware, the owners have voted up or down on any number of NHLPA offers.  You have no clue.

I don’t either, but then again I’m not making the assumption they did or did not.

I could just imagine what this lawsuit would content if the NHLPA had conducted a secret ballot on October 17th and it had come back with the 99% against vote you and I both know it would have.  Great, so now the union is negotiating in bad faith because they hate the offer too much!  It’s a conspiracy!

You’ve gone round the bend. 

I don’t think every offer should have been voted on.  Heck, I don’t even think two of them should have been voted on.  But… one?  The most recent offer the NHL made?  They can’t even vote on one offer as a full membership before deciding to decertify/disclaim?

Not one?  They can’t take that offer to the membership and say ‘Hey, this is the best offer we’ve gotten so far, we think we have some other strategies to try if you don’t like it, it’s not where we want to be but we’re close, so let’s see where we are?’

If the point was making a deal, that’s what they’d do.  If the point is to try another gambit to change the direction of the negotiations, they’d do what they did.

Button up, not let the NHL see any dissension (assuming any exists), and head to the courts to see if they can connect on a hail mary pass.  If they get beaten in court, maybe they think they’ll be able to fall back on the NHL’s last offer.

It’s decent strategy… I just think it looks bad.

Posted by HockeyinHD on 12/15/12 at 09:06 PM ET

J.J. from Kansas's avatar

... says the guy who constantly misrepresents what other people post, and then argue with his misrepresentations, and then pretends his misrepresentations are what happened.

Well then stop doing those things and the problem will end.

I didn’t say there was anything wrong with the Union not voting on anything up until they decided to vote on not being a Union anymore.

Eyeroll.

We get it. You’re saying there’s nothing wrong with the Union not voting on anything… except that there is something wrong with them not having voted on anything when they vote to decertify.

I disagree with that.  It’s not a strawman. Regardless of whether they vote for decertification, I don’t think there’s anything wrong with them not having voted on the NHL offer from November 8th or any of the earlier ones.

Why did I have to say that again? I don’t think anybody else had a problem understanding that.  Why did you have such a problem doing so?

‘Rejected by the NHL’.  What does that mean?

It means that the NHL did not accept them. Holy shit, what a question.

It’s entirely likely that the NHL is able to get pretty quick up or down from their member-owners on these things.

How is that likely? What evidence do you have to support that likelihood?

More importantly, how can you say that there’s a likelihood of something that you’re saying you know nothing about AND are saying you’re not making assumptions about? Your claim of likelihood is based on an assumption you’re claiming you’re not making. How ridiculous.

The most recent offer the NHL made?  They can’t even vote on one offer as a full membership before deciding to decertify/disclaim?

Any argument that not voting on the November 8th offer has any tactical, strategic, or legal bearing here has zero merit.

Posted by J.J. from Kansas on 12/15/12 at 09:31 PM ET

redxblack's avatar

HHD - any union that you are a member of would have to hear you out and consider your views. If you’re not a dues paying member of the NHLPA, you really have no voice in what they should or should not be doing, tactically or otherwise. I’m damned sure you’re not privy to more than anyone else knows about the closed door meetings.

Posted by redxblack from Akron Ohio on 12/16/12 at 02:37 PM ET

HockeytownOverhaul's avatar

it’s incredible you two give eachother so much attention.  I have NEVER seen HD concede to seeing where someone else was coming from.  What’s the point in writing PAGE LONG RESPONSES knowing what the end result is?  Just ends with “zinging” eachother and bitching about the way each one argues.  Fuchs sake.

Posted by HockeytownOverhaul on 12/16/12 at 04:39 PM ET

Add a Comment

Please limit embedded image or media size to 575 pixels wide.

Add your own avatar by joining Kukla's Korner, or logging in and uploading one in your member control panel.

Captchas bug you? Join KK or log in and you won't have to bother.

Smileys

Notify me of follow-up comments?

Feed

Most Recent Blog Posts

About Kukla's Korner Hockey

Paul Kukla founded Kukla’s Korner in 2005 and the site has since become the must-read site on the ‘net for all the latest happenings around the NHL.

From breaking news to in-depth stories around the league, KK Hockey is updated with fresh stories all day long and will bring you the latest news as quickly as possible.

Email Paul anytime at pk@kuklaskorner.com

 

image

image

image