NBA Lockout: Players’ Union Files Amended Unfair Labor Practice Charge Against League

The NBA lockout has taken its first foray towards the courtroom as the National Basketball Players Association has filed an unfair labor practice charge with the National Labor Relations Board (NLRB). The charges were filed in May but have since been amended to include failure to bargain concerns. The initial charge, brought in late May, accused the NBA of “making harsh, inflexible and grossly regressive ‘takeaway’ demands ... not supported by objective or reasonable factors or balanced by appropriate trade-offs.”

On July 1, the NBPA amended the charge to include an allegation that the league cancelled the annual summer league without bargaining with the union as it was required to do. The amended allegation includes accusations that the league imposed the lockout in spite there being no impasse in negotiations. The law requires that a lockout be imposed after impasse and if not that would be a violation of Section 8(a)(1) of the National Labor Relations Act. Impasse occurs when “the concept of agreement is impossible to imagine” and there is hopeless deadlock. Given the way these “negotiations” have gone lately, some NBA fans may view the concept of agreement as impossible to imagine.

This labor charge differs from the NFL labor charge in that the NFL filed the charges against the union claiming their decertification was a sham. If the NBPA elects to decertify as they seem to be considering, it would not be at all surprising to see the NBA file its own unfair labor practice charge.

Amidst all this chaos, the NLRB has begun its investigation into the NBPA charges. The NLRB is a very unique government entity in that it operates as a prosecutor, judge, jury and executioner all in one fell swoop. The administrative law judge and prosecutorial department are distinctly separate in their operations but it is still different from the normal court experience.

When charges are brought by an employee, union or employer, they file the charges in a regional office. In this case, the NBPA filed the charges in the New York regional office. Generally, the case is assigned to a field attorney or field examiner to conduct an investigation to determine whether there is sufficient evidence to take the case before an administrative law judge. Once the case is brought before a judge, there will be an attempt at mediation before the case goes to a judicial hearing. The sides can settle at any point up until the judge issues his ruling.

Given the high profile nature of this case, it is also possible the case will be assigned to the national office in Washington, D.C., for disposition. The national office often takes on such cases so as to devote sufficient resources to its disposition.

If the board does decide there is sufficient evidence and moves forward, the end result would be primarily a public relations victory for the NBPA. If the league lost the case there are certain punishments that can be imposed by the judge, although generally it involves posting a notice of violation and being required to conduct the necessary bargaining. There are not huge fines or jail time imposed for violations of the National Labor Relations Act. The most significant punishment comes with back-pay cases and that is not applicable in this instance. Rather, an outcome in favor of the NBPA allows them to trumpet to the world that the NBA has been determined to be an unfair employer.