Is owners' road impasse-able?

August 17, 1994|By Peter Schmuck | Peter Schmuck,Sun Staff Writer

The major issue that stands in the way of a settlement in baseball's latest labor dispute may be ownership's proposed salary cap, but that is not the reason that the players went on strike last week.

Why the players are on strike can be summed up in one less-than-familiar word:

Impasse.

It is a dictionary term that refers to a roadblock or a difficult situation with no workable means of escape. In this case, it is a legal term for a collective bargaining stalemate so intractable that management may declare further negotiations pointless and impose new working conditions unilaterally.

That is why the players went on strike, because the owners may have the power to declare an impasse once the labor dispute enters the off-season. If there is no settlement by late October, management could try to impose its salary cap and the players union would have far less leverage than it has while there are regular-season and postseason games hanging in the balance.

It still could get to that point, but that doesn't mean the owners win. It would set in motion a complicated chain of events that could push the strike into next season and push the labor dispute into years of litigation.

"There is a lot of misunderstanding over that," ownership negotiator Richard Ravitch said recently. "Everyone has the impression the owners can force a cap on the players. We can't force them to do anything."

The owners can hope, however, that the union will fracture at that point and the players will begin breaking ranks and signing contracts under the new system, because only about one in five is under contract beyond this season.

What the union more likely would do is appeal to the National Labor Relations Board for relief from what it would argue is an unfair labor practice. The labor board then would investigate the collective bargaining process to determine if management negotiated in good faith before declaring an impasse.

That's when it really gets complicated. The investigation could take months, and the case could last for years, much like the similar case brought in 1987 by the NFL Players Association and settled only recently.

If the NLRB agreed with the union's contention, the owners likely would be ordered to remove the salary cap. They also would be liable for damages, based on the same kind of criteria that won the Major League Baseball Players Association a $280 million judgment in the three collusion grievances filed during the late 1980s.

"If we are called into the fray, it would be because one of the parties filed an unfair labor practice charge," said Louis D'Amico, director of the regional office of the NLRB in Baltimore that handled the NFL case. "An investigator would be assigned and would receive information from the charging party. Then the investigator would meet with the charged party and pull all of the information together. The regional officer would then make a determination to go on with the case or dismiss it."

The case likely would be filed with the regional office in New York, because that is where the union offices and those of Major League Baseball are located.

If the NLRB decided to issue a complaint, there would be a hearing before an administrative law judge, who would hand down a decision. Either side would have the option of appealing that decision to the three-judge NLRB panel in Washington and could go from there into federal circuit court.

The trial stage of the NFL case lasted 1 1/2 years and involved 20,000 pages of transcripts. The baseball case might not be quite as involved, but if it reached federal court, this dispute still might be raging in 1997.

"There are no fast remedies here," said Baltimore attorney Earle K. Shawe, who is considered an expert in management labor law. "It could take a long, long time."

Bad faith? The union undoubtedly would argue that the owners were planning for a declared impasse even before they presented their salary-cap proposal to the players. The fact that management spent 18 months formulating the salary cap and allowed only three or four months for negotiation with the players association also might be relevant.

"They can accuse management of an unfair labor practice if they [the owners] negotiated in bad faith, and it is an unfair labor practice if they declare impasse prematurely," Shawe said. "But in my opinion, it would be dismissed.

"The law requires both sides to negotiate in good faith, but it does not require a concession from either."

Once the dispute reaches impasse, the owners could begin trying to sign players under the new work rules and could open spring training with minor-league players. There is nothing prohibiting them from using replacement players next season, but they have avoided that strategy in the past because of the possible harm it might do to the game's credibility with the fans.

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