I wish I had $20 for every time an HR manager has said to me that, if only the union negotiators would get out of the way and we could deal with our
employees directly, we’d be able to get a deal quicker. Well, the NHL has proposed this highly unusual strategy, and the NHL players’ union has accepted the offer (sort of).
The NHL is a cartel of teams that bargain as an employer’s association headed by its Commissioner and chief negotiator Gary Bettman. Bettman is basically the head of the NHL team owners’ union.
The NHLPA is a union, headed by its Executive Director and chief negotiator Donald Fehr. Those two have failed miserably in reaching a deal; Bettman’s legacy includes ‘bargaining’ the two longest lockouts in pro sports history. As we say in labour relations, any idiot can bargain a strike or lockout. The trick is in getting a deal without a work stoppage. Bettman and the NHL suggested a meeting with players and owners without himself or Fehr present. Fehr agreed, probably concerned that he would look unreasonable if he didn’t.
The assistants to Bettman and Fehr will be in the room, as I understand it, so this is not a pure case of the employers’ and players’ unions stepping aside completely.
Nevertheless, Buzz Hargrove, former Director of the Canadian Auto Workers, thinks the NHLPA has made a big mistake agreeing to a bargaining meeting without Don Fehr being in the room. He argues that workers join unions to obtain expert negotiators who understand the tricks of the trade and can prevent them from being fleeced by their much more business-savvy employers. Buzz notes that NHL players are young, inexperienced, and not well educated, whereas the owners are all successful, skilled, and experienced business negotiators. Without Fehr in the room, the power and information is very one-sided, says Buzz. You can also listen to Buzz talk about this on the radio show Prime Time Sports (On the Monday, December 3rd at 5 p.m. episode, Buzz comes on about half way through). I assume the players wouldn’t actually agree to anything without speaking to Fehr and the union leaders. Does that address Buzz’s concerns?
The law in Canada deals with the scenario of employers bargaining directly with unionized employees in a number of ways. Consider Ontario as a model.
Firstly, it is against the law for a unionized employer to bargain directly with unionized employees. That rule is found in Section 70 and in Section 73. Here, the idea is that the employees have elected to have the union represent them in bargaining, and so employers should not be able to ignore that decision and bargain with employees directly. Section 73 is interesting, because on its face, it does not appear to permit what is happening today in NHL talks. Read it:
73. (1)No employer, employers’ organization or person acting on behalf of an employer or an employers’ organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.
Do you think this section would be interpreted to prohibit NHL owners (employers) from ‘bargaining with’ individual NHL players (employees)? Are the player reps who are attending this meeting actually considered representatives of ‘the union’? Should the section not apply in any event when ‘the union’ consents to employers bargaining directly with employees?
Secondly, an employer has one chance to bypass the union bargaining team and order their last offer to be put directly to employees in a forced ratification vote. This right is found in Section 42. It’s usually up to the union’s bargaining committee to decide which offers to put to a vote. They can’t put every employer offer to a vote, since that would stall the process dramatically, as votes take time. An employer might try this when it believes the employees are split, but that a majority would accept the employer’s offer if only the union would allow them to vote on it. As noted, the employer has only one chance to do this. If the tactic fails, and employees reject the offer, it can sometimes cause employees and the union to dig in and demand that the offer be sweetened.
Questions for Discussion
Do you think its a good idea for Don Fehr to step aside and let the players ‘bargain’ directly with NHL owners?
Do you think this strategy favours one side over the other? Why or why not?