The National Football League today filed an unfair labor practice (ULP) charge against the NFL Players Association, alleging that the union has failed to bargain in good faith with the league in violation of Section 8(b)(3) of the National Labor Relations Act. The text of the charge, filed at the Regional Office for Region 2 in New York City, accuses the union of engaging in unlawful "surface bargaining and an anticipatory refusal to bargain."
More specifically, the charge describes the union’s alleged unlawful conduct to include failure to schedule sessions, failure to respond to management proposals in a timely and meaningful manner, insisting upon the disclosure of financial data as a condition to negotiations, and additional conduct indicating a lack of "intent to reach agreement through good faith collective bargaining."
The charge continues, to spell out the heart of the NFL’s concern — the NFLPA’s long apparent strategy of coordinating a decertification in order to obtain a strategic advantage:
These tactics have been and are integral to — indeed, they are in preparation for — the NFLPA’s announced strategy to run out the clock and, after the CBA expires on March 3, purport to "disclaim interest" as the representative of the NFL players, a strategy utilized by the Union in a prior negotiation and one that the NFLPA often has threatened to resort to in this negotiation should it be deemed more advantageous to the players than the collective bargaining process that the Union is obligated by law to follow. On the false premise that the bargaining relationship would effectively be terminated as a result of its sham dislaimer, the NFLPA has made plain that it will then seek (i) to enjoin, as a supposed antitrust violation, any effort by the League/Clubs in support of their bargaining demands to exercise their rights under federal labor law lawfully to lock out the players, and (ii) once again to achieve a favorable agreement with the NFLMC through the threat, commencement and subsequent settlement of antitrust litigation, rather than through the give and take of good faith collective bargaining contemplated by the Act and enforced by the National Labor Relations Board.
As evidence, the NFL suggests the Board view the NFLPA’s statements and conduct over the course of the last 20 months.
One of the interesting results of this filing is that, pursuant to the NLRB’s "blocking charge" rule, the agency will likely not process a decertification petition filed by the players now, until after it has fully investigated this charge. As a result, if the NFLPA intends to continue with its antitrust leverage strategy, the union itself will have to "disclaim interest" in representing the employees — essentially, it must walk away from the players. It is the union’s ability to properly do this that the league is attacking in this charge. According to Chapter 8 of the NLRB’s Outline of Law and Procedure in Representation Cases:
To be effective, [a disclaimer] must be clear and unequivocal and made in good faith. Retail Associates, 120 NLRB 388, 391–392 (1958); Rochelle’s Restaurant, 152 NLRB 1401 (1965); and Gazette Printing Co., 175 NLRB 1103 (1969). In International Paper, 325 NLRB 689 (1998), the Board characterized the request as being one of “sincere of abandonment with relative permanency.”
Thus, a union’s bare statement is not sufficient to establish that it has abandoned its claim to representation if the surrounding circumstances justify an inference to the contrary. 3 Beall Bros. 3, 110 NLRB 685, 687 (1955). Its conduct, judged in its entirety, must not be inconsistent with its alleged disclaimer H. A. Rider & Sons, 117 NLRB 517, 518 (1957). McClintock Market, 244 NLRB 555 (1979), and Ogden Enterprises, 248 NLRB 290 (1980). Windee’s Metal Industries, 309 NLRB 1074 (1992).
In assessing the effectiveness of any disclaimer by the NFLPA, the NLRB will indeed study carefully the union’s conduct over the last several months in bargaining, and perhaps more importantly, how it conducts itself after the supposed disclaimer. Any effort by the union and its current leadership to continue to drive the players’ negotiating strategy will surely undermine its position on these allegations.