Thursday, February 17, 2011

What That NFL Complaint to the NLRB Means

Editor's Note:  Smart but Flaky IDYFT contributor and labor lawyer barnyard wrote this piece.  I'm posting it, as the importance of that complaint becomes more and less important with the news that both sides have submitted to the mediation process.  Here's barnyard:

It’s old news that on Monday, February 14th the NFL Owners filed an Unfair Labor Practice (“ULP”) Charge against the NFLPA, prompting NFLPA Assistant Executive Director of External Affairs (longest title ever) George Atallah to quip via Twitter that he would have preferred flowers and chocolate.  Pretty funny, but also relevant for reasons that I’ll get to in a bit. 

The ULP Charge was a pretty blatant public relations maneuver that is arguably a frivolous abuse of the National Labor Relations Board, but if not frivolous it is certainly humorous if you enjoy the hubris of people who just don’t get it.  A few days later I still haven’t seen much to breakdown the significance of this move, and I think some breakdown is worthwhile since it provides another chance to pile on the Owners and their obvious role as the bad actors in this entire drama.
First, the basics of what the hell an Unfair Labor Practice Charge amounts to.  The National Labor Relations Board is the special court (not technically a court, but you are reading a sports blog) that is tasked with interpreting and enforcing the country’s labor laws (back in the day they decided labor disputes needed their own interpretive body for reasons I don’t feel like getting into and you probably don’t want to hear).  An Unfair Labor Practice Charge is an accusation that someone violated the National Labor Relations Act (the first of four or five seminal pieces of legislation that control labor-management relations), and is resolved first by the National Labor Relations Board.

The NFL Owners’ ULP Charge is an accusation of ‘bad faith bargaining’ on the part of the NFLPA.  Bad faith bargaining is a very subjective violation of the National Labor Relations Act, and really amounts to a case-by-case version of passing the smell test.  The reason we need a tough-to-apply smell test to interpret our labor laws is one of the glaring shortcomings of the National Labor Relations Act is that it forces parties to sit down and bargain, but doesn’t mandate that they ever come to an agreement (the temporarily sexy Employee Free Choice Act from early in the Obama administration would have imposed collective bargaining agreements on parties unable to a ink a deal after a certain amount of time). 

Bad faith bargaining comes in a variety of flavors, but in this case is an accusation from the NFL Owners that their counterpart at the collective bargaining table is sitting down to talk about issues (again, the law mandates you have to sit and talk), but has no intent of trying to reach an agreement (to try and make up for the fact that reaching an agreement isn’t mandatory, the law uncomfortably mandates you have to try).  In labor law short hand this type of bad faith bargaining is called ‘surface bargaining.’  In normal person shorthand this type of behavior is called ‘being a dick.’

This accusation of ‘surface bargaining’ hilariously comes from the Owners just days after they used the labor-management version of the nuclear option by stepping away from the table this past week in response to a fifty-fifty flat split of revenue from the NFLPA.  Without weighing in on the merits of the NFLPA’s offer (um, it was an inherently reasonable proposal), it has that quality of hilarious hubris when a party walks away from the table and accuses the other guy of not wanting to sit down and hammer out a deal. 

To be fair, the ULP Charge is apparently based on the NFLPA’s strategy reveal that they would decertify the union to position for an antitrust charge if a new deal is not reached by the March 4th deadline.  Given the owners knew of this strategy months ago when the NFLPA openly announced it, and this ‘surface bargaining’ charge comes at a hilariously stupid time, and it is unlikely the National Labor Relations Board will rule on the ULP Charge before March 4th, I’m guessing the NFL Owners planned all along to time the Charge for February 14th in an attempt to gain a public relations boost by leveling an accusation of labor crime. 

I mentioned before that bad faith bargaining is a subjective test that basically asks you to pass the smell test.  Understanding we have far from a complete understanding of all the interactions, it is really tough to look at the NFLPA and accuse them of not really wanting to reach an agreement.  Hell, their first proposal of a fifty – fifty revenue split is already a ten percent give back of revenue (I’m working from the belief that it is a 60 – 40 split right now, but who knows). 

Remember that Atallah Tweet I said would eventually be relevant?  Here it is:  I think it may be the closest indication of bad faith bargaining on the part of the union.  Remove that harmless swipe, and the NFLPA has been nothing but professional and with a sense of urgency since the NFL Owners picked this fight by lopping a year of the existing collective bargaining agreement.  The worst that can be said is Atallah’s tweet demonstrates the NFLPA is not taking the matter seriously and therefore doesn’t really want to reach an agreement (not an adult accusation).  

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