Regional Office Refers NFL Charge to Division of Advice in D.C.
Liz Mullen of the Sports Business Journal (subscription) is reporting today that Region 2 of the National Labor Relations Board has sent the unfair labor practice charge filed against the NFLPA by the NFL to the Division of Advice in Washington, D.C.
Back in February, the NFL owners filed the charge (subsequently amended) against the NFLPA, alleging that the union had 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 in New York City, accused the union of engaging in unlawful "surface bargaining and an anticipatory refusal to bargain." The charge described the alleged misconduct 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. Finally, the charge spelled out the heart of the NFL's concern -- the NFLPA's strategy of coordinating a decertification in order to obtain a strategic advantage in their negotiations -- which is now also at the heart of the antitrust litigation playing out in the Court of Appeals for the Eighth Circuit.
The Region's referral to the Division of Advice is not terribly unique, especially given the stakes involved here. The Division of Advice, under the auspices of the Office of the General Counsel in Washington, D.C., consists of three branches: The Regional Advice Branch, the Injunction Litigation Branch, and the Legal Research & Policy Planning Branch. This matter is obviously now before the Regional Advice Branch which will research, analyze and provide "advice" to the General Counsel and the Regional Office with respect to whether the charge is worth pursuing. Following this review -- perhaps a few weeks or months hence -- the Division will likely issue an Advice Memorandum to the Regional Director recommending either issuance of a complaint or dismissal of the charge absent withdrawal.
As a practical matter, in the instant dispute between the NFL and the NFLPA, this is not likely to have much impact. We are likely to see an Eighth Circuit decision in the court litigation before we see the results of this review by Advice. It certainly does not hurt the owners' position in ongoing negotiations in that the PR of an outright dismissal by the Regional Office might have had an impact on their leverage. And, to some extent, the NLRB's referral to Advice does undermine the certainty of District Court Judge Susan Nelson's conclusions about what the Board was likely to do when she granted the players an injunction against the owners' lockout back in late April. But this fairly routine decision by the Regional Office certainly did not shift any significant leverage toward one side or the other in this ongoing legal battle.
