NBA’s actions won’t help union’s NLRB case

A federal mediator is set to trudge into the NBA’s collective bargaining morass. That means we have three government entities trying to solve the dispute over how to distribute $4 billion or so in revenue: the mediator, George Cohen; the federal judge in New York overseeing the league’s lawsuit against the players’ union and other defendants; and the National Labor Relations Board, which is evaluating separate complaints in which the league and union accuse each other of failing to bargain in good faith. The union won the race to the NLRB, filing its initial charge against the league in May and then updating it in July.

The NLRB’s process is a complicated, multi-step maze, but to summarize: If top board officials in Washington, D.C., who are presumably reviewing the union’s complaint now, conclude that the union’s case has merit, the board can file a complaint on the union’s behalf in federal court. That would be bad for the league. And if the NLRB wants to get really aggressive, it can, as part of that lawsuit, ask the judge to issue an injunction halting the lockout. The union is quietly hopeful about this process, and sources familiar with the matter say the union continues to forward material — editorials criticizing David Stern and the like — to the NLRB, just as top league officials met with the NLRB on Wednesday to talk things over.

This has all created a bit of confusion about what evidence actually matters in the NLRB’s evaluation of the union’s case. Any time the NBA does something perceived as bullying, Twitter explodes with questions about whether the move will help the union’s NLRB case, since it could be read as the league’s refusal to negotiate in good faith. It happened when the league tried to precondition Sunday’s last-ditch meeting on the union’s agreeing to a 50-50 split of basketball-related income. And it happened again on Tuesday, when the league reverted to its demand that players receive only 47 percent of that income.

But here’s the thing: Any league action between mid-July, when the union last filed an updated charge with the NLRB, and today doesn’t really “count” in the case, according to several labor lawyers I’ve talked to over the last few days. The union could include such evidence in updated charges, and the league would get a crack at responding. The union hasn’t gone that route, in part because it wants the NLRB to move quickly.

Evidence from after that July complaint could come into play if the NLRB files a lawsuit on behalf of the union, but the league would likely challenge its admissibility, lawyers say.

One further note on the NLRB: It is the source of major controversy in Washington, D.C., because the board, which normally has five members, is down to just three — the minimum number it must have to hear cases, make rulings and generally function, according to lawyers and news reports. One of those three members is scheduled to leave the board on Dec. 31, and Congress, for reasons too complex to get into here, has been unable/unwilling to hold confirmation hearings for potential new appointees.

In other words: There is at least a chance the board will no longer be functioning when 2011 becomes 2012. Time is of the essence for the union here.