SBJ/June 20-26, 2011/Labor and Agents

NBPA filing alleges owner bypassed union, went to players

Liz Mullen
The National Basketball Players Association has alleged in the unfair-labor-practices charge it filed last month against the league that at least one NBA club owner bypassed the union and spoke directly to players about collective-bargaining matters.

“What we are alleging is at least one owner went to some players and got a response from players, and amended the NBA’s proposal based on that response,” said Larry Katz, an attorney with the law firm Steptoe & Johnson, who is representing the union in the case.

The allegation is one of seven the NBPA made in its charge, which was filed with the National Labor Relations Board on May 24.

The NBA did not respond to an email seeking comment for this story. The day the charge was filed, the league, in a statement, said, “There is no merit to the charge … as we have complied — and will continue to comply — with all of our obligations under the federal labor laws. It will not distract us from our efforts to negotiate in good faith a new collective bargaining agreement with the Players Association.”

The league and union were scheduled to hold two bargaining sessions last week. The NBA collective-bargaining agreement expires June 30, after which the owners can lock players out. The players are asking the NLRB to investigate their claims and seek an injunction to stop any lockout the NBA may try to impose.

Since the NBPA made the charge, the union has provided the New York NLRB office that is investigating the complaint with a variety of documents, including bargaining notes, sworn declarations and proposals, Katz said.

Katz declined to reveal the names of the players or the owner he alleged talked directly to the players about collective bargaining, saying that the players asked not to be identified for fear of potential retaliation.

The National Labor Relations Act prohibits employers from attempting to negotiate with individual employees who are represented by a union.

Additionally, the players allege, among other things, that the NBA engaged in regressive bargaining; “take-it-or-leave-it” bargaining; not providing financial information the union needs to back up the league’s demands for players concessions; and making demands that are destructive to the collective-bargaining process and signal to employees that back-and-forth bargaining is futile.

“They are trying to prove a totality of conduct from which you can infer bad-faith bargaining,” said Bill Gould, Stanford Law School professor and former chairman of the NLRB.

Gould noted that NBA officials have not only denied the charges but also stated publicly, repeatedly, that they have opened their financial books to the union. But just because the facts are in dispute, Gould said, does not mean the NLRB will not act.

The NLRB will have to make an assessment based on the evidence it gathers from the union and the league as to “whether there is cause to believe there is a violation [of the law],” Gould said. If there is cause, that could start a process in which the NLRB issues a complaint against the NBA, with the matter then going before an administrative law judge. If the players prevail there, the NLRB could seek an injunction, he said. It all depends on the evidence.

Katz said the investigator in the New York regional office of the NLRB was expected to finish his investigation by the end of last week. “Oftentimes at this stage of the investigation they will say, ‘You are not giving us enough evidence. Would you like to withdraw the charge?’” Katz said. “Thus far, they have not asked us to withdraw the charge, so that encourages us that the charge will not be dismissed.”

Liz Mullen can be reached at lmullen@sportsbusinessjournal.com. Follow her on Twitter @SBJLizMullen.
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