Did you notice the stories recently about how the NFL players union might decertify for avoid being locked out in the current round of collective bargaining? Here is the New York Times story.
Why would a union want to be decertified?
The answer is that the rules that apply to unionized workers are very different than those that apply to nonunion employees. Nonunion employees can not be locked out, for one thing. In Canada, if a nonunion employer tells all of its employees that they are not permitted to come to work unless they agree to the employer’s demands for changes to the employment contract, that would be a breach of the employment contract, and a constructive dismissal if the employee elected to treat it as having terminated the contract. In short, by decertifying, a union should be able to prevent a lockout by the employer, since an employer cannot lock out nonunion employees. At least, that would be the result in Canada.
Decertifying can also get a union out of a collective agreement it doesn’t like. For example, do you remember when the CAW and Magna entered into their neutrality agreement, the Framework of Fairness? That controversial agreement included a term saying that the union would never strike, even though the collective agreement would end periodically and be renewed. I noted then that, even it that term was enforceable (and I had doubts about that given how it was written), the CAW could later decertify to get out of that commitment, get re-certified and then bargain a new agreement, perhaps following a perfectly lawful strike. If the CAW believed it had the employee support to win a strike at Magna, it would likely also have the support to feel confident it could pull off such a strategy. I’m not saying this would happen, just that legally speaking, that would be one way to get around a “never strike” contract clause.
But the decertification bargaining strategy of the NFLPA (they did this before in the 1980s) has other legal implications. Some relate to anti-trust laws. Sports leagues work like cartels–a group of employers (teams) enter into agreements to do and not do certain things. For example, they agree to a wage cap, and to rules about when and under what circumstances players can move from one employer to another. These restrictions on employee mobility and compensation are lawful in the context of collective bargaining with a certified player union, but they are anti-competitive practices when there isn’t a certified union on the scene. So decertification also calls into question much of the standard rules that apply to the sports leagues.
If the NFLPA decertifies, it could prevent the season from being cancelled, since the employers could not lockout the workers. So the players would continue to be paid according to their employment contracts. Much of the employer’s bargaining power is dissipated by this strategy. In theory, once a union is decertified, an employer could dismiss the nonunion workers in accordance with prevailing rules (contract and statute) governing dismissal for nonunion employees. This is what makes decertification a risky strategy for a union in a more typical workplace. But the NFL is not going to fire its players, obviously, even if they were legally entitled to.
The NFL argued last time the union decertified that the decertification was an unlawful bargaining ploy. They lost that argument. There are Canadian cases where decertification/abandonment has been ruled unlawful when done in order to pressure an employer to do something it is not lawfully required to do. For example, in a case called Enka Contracting, the OLRB ruled that a union committed an unfair labour practice by abandoning it’s bargaining rights in order to coerce the employer to voluntarily recognize the union at a related business of the employer. The union had previously attempted to expand its bargaining rights in a common employer application, but its application had been dismissed by the OLRB. If the union decertified, the employer would have lost some business that was tied to be covered by the collective agreement with the union. The OLRB said this:
… the union was clearly attempting to use the threat of withdrawal of bargaining rights in order to obtain something that it could not otherwise obtain under the Act… On the basis of these findings of fact, we conclude that the union has breached the provisions of section 76 of the Act in that it has attempted to coerce and intimidate the employer – really by the threat of the loss of business, so as to achieve an objective that it is not otherwise entitled to. There is something quite inappropriate about the union’s conduct where it has sought a related employer declaration from the Board, the request has been denied, and then the union threatens the employer with loss of business if it does not give in to its demand.
The facts are different here, but this decision suggests that the OLRB will scrutinize the motive for a voluntary decertification or abandonment of bargaining rights. This could become relevant if the NBA Players Association uses the decertification strategy latter this summer, something it is considering. Since the Raptors are governed by Ontario law, OLRB law would apply. However, if the decertification strategy is lawful in the U.S., it may be that neither side would bother going to the OLRB.
Do you think a union should be permitted to decertify and then re-certify as a bargaining strategy, or is this something that you think the law should prohibit?