SBJ/October 3-9, 2011/Labor and Agents

NBPA might challenge any effort to decertify before NLRB

If a group of players were to file a petition to decertify the National Basketball Players Association, the union might challenge the action before the National Labor Relations Board, an attorney representing the NBPA in its unfair labor practices charge against the NBA said last week.

“The only reason a decertification petition would be filed is because the conduct of the NBA in bargaining with the union has so undermined the union that some members have lost faith in the union’s ability to reach a fair contract,” said Larry Katz, the attorney who has been representing the NBPA. The NBA has said the allegations in the charge, filed in May, are without merit.

A group of powerful NBA agents, representing 30 percent of the NBA players as a whole, is said to be considering filing a petition with the NLRB to decertify the NBPA as a union. The agents have been secretive about their plans, but no decertification petition had been filed with the NLRB as of last Thursday. In addition, the league and NBPA were to have continued negotiations over the weekend in pursuit of a new collective-bargaining agreement that would end the three-month lockout.

Under labor laws, the NLRB could hold a vote to decertify the NBPA as a union if 30 percent of NBA players signed a petition to do so. The NBPA then would be dissolved as a union if 50 percent plus one player voted in favor of it.

But Katz said that if the players did file a petition to hold a vote for an election to end the NBPA’s union status, the union could challenge it. “If a decertification petition were filed, the union could file a new charge, a blocking charge, alleging that the unfair labor practices of the NBA resulted in the decertification and that it should be blocked until the unfair labor practices charge is resolved,” Katz said.

Katz said whether the NBPA would challenge such a petition would depend on the circumstances, including how many NBA players signed it.

In addition to denying the allegations in the NBPA’s unfair labor practices charge, the NBA has filed an unfair labor practices charge of its own against the union, alleging that it was planning to decertify as a tactic to avoid bargaining. It is not clear what affect the league’s charge would have on any decertification petition filed by NBA players. The NBA declined to comment for this story.

NBPA Executive Director Billy Hunter has stated publicly that the union leadership does not plan on a path of decertification, which was the course of action taken by the NFL Players Association during the NFL lockout earlier this year. In fact, multiple player-side sources said that Hunter has had discussions and disagreed with agents who favor disbanding the union as a way to protect players’ interests.

Agents and players are said to be split on whether to decertify, and it was not clear last week whether the agents who favor the move have enough support to get it passed.

Bill Gould, a Stanford Law School professor and former chairman of the NLRB, said that if the NBA players file a petition to decertify, the NLRB could halt the processing of the NBPA’s unfair practices claim while it holds an election to determine whether the NBPA represents a majority of NBA players.

The NBPA has alleged that the NBA has failed to bargain in good faith, and in alleging that, the union has purported to represent a majority of NBA players, Gould said. Whether the board decides to halt the election while it makes a decision on the unfair labor practices charge or halt the investigation of the charge while it holds an election is a decision the NLRB would have to make, he said.

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