SBJ/June 6-12, 2011/Labor and Agents

NLRB regional office sends NFL's charges against NFLPA to national board for review

The regional office of the National Labor Relations Board that has been investigating the NFL’s unfair labor practices charge against the NFL Players Association has sent the matter to the board’s national Division of Advice for review, a spokeswoman for the NLRB confirmed last week.

“As part of the investigation, there is a process. … The regional office does the primary investigation, and there is a review from the Division of Advice,” said Nancy Cleeland, director of public affairs for the NLRB. “We are still in the process of this investigation and no decision has been made.”

The Division of Advice is a section of the NLRB in Washington, D.C., charged with determining “difficult or unsettled issues of law,” said Michael Paull, an attorney with Klein Dub & Holleb who has represented employers in NLRB charges. He said that it could take “weeks or months” for the Division of Advice to issue a decision.

Bill Gould, a Stanford Law School professor and former chairman of the NLRB, said the Division of Advice is called that because its job is to provide advice to the NLRB general counsel, who decides whether to dismiss a case or bring a complaint.

The NFL declined to comment for this story. An NFLPA source confirmed that the charge had been sent from the regional office to the Division of Advice but had no further comment.

The NFL filed its charge with the New York office of the NLRB on Feb. 14, alleging that the NFLPA was not bargaining in good faith but instead was pursuing a strategy to decertify the union and file an antitrust lawsuit. At the time the charge was filed, the NFLPA was still operating as a union. NFLPA officials said the charge was without merit.

The NFLPA decertified as a union and filed an antitrust case against the league on March 11. The NFL locked out players on March 12.

In NLRB cases, an investigator typically is assigned to a case and makes a determination on whether the stated charges have merit. It is unclear if the regional office has made such a determination regarding the NFL’s charge. Labor law experts said the fact it has been sent to the Division of Advice is not indicative of a finding either way.

The 8th U.S. Circuit Court of Appeals was scheduled last Friday to hear arguments on the NFL’s appeal of a federal judge’s decision to enjoin the lockout. Gould said whether the ultimate NLRB decision has an impact on the NFL labor impasse may depend on what decision the 8th Circuit court makes as well as the court’s reasoning in reaching its decision.

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