While the NHL Players' Association has not decided if it will file a complaint of unfair labour practice over commissioner Gary Bettman granting permission for the league's management personnel to talk directly to the players about its latest offer, the move was widely seen as one more public-relations gaffe for the NHL.
"If anything, these tactics actually end up building solidarity with unionized employees," said Steven Barrett, a partner in the Toronto law firm Sack Goldblatt Mitchell LLP and an expert in labour law. "In this sort of situation no one likes to see the authority of their representatives undermined in that way.
"It can actually end up being not a particularly intelligent strategy for an employer to follow."
NHL deputy commissioner Bill Daly downplayed the move, which came last week, one day after the league posted its offer for a collective agreement that split NHL revenue on a 50-50 basis with the players on the league's web site. He called it a non-issue and said in an e-mail message he was confident the league did not violate any rules about unfair labour practices.
In a carefully-worded memo sent to all 30 NHL teams, Bettman said it was understood players were calling management about the offer. He gave them permission to discuss the offer for 48 hours, last Thursday and Friday, and cautioned the executives about what they could and could not say. Failure to observe the proper procedure, the memo said, "can both set us back in our effort to resolve this work stoppage and cause serious legal problems."
Given that the move followed the NHL owners' hiring of a notorious Republican spin doctor in what was revealed as a strategy to try and divide the players, Bettman took another lambasting from the players' side. They were especially critical since the NHL commissioner had a gag order in effect on the owners and general managers with heavy fines for those who spoke publicly about the lockout.
The controversy seems to have increased the players' resolve to get the collective agreement they want from the owners. With no negotiating sessions scheduled, the optimism a full 82-game season could be saved, which greeted the owners' surprise offer last week and the union's three counter-proposals in response, has evaporated.
"It's just another bush-league move that Gary [Bettman] has initiated," player agent Anton Thun said. "Why he would permit his GMs and owners to talk when they haven't been allowed to talk all along is comical. If Gary truly wants the owners to be in position to negotiate they should be allowed in the room.
"He doesn't want to negotiate a deal, he wants to bust the union.
The word drifting out of the NHLPA headquarters was executive director Donald Fehr and his associates were investigating what was said to players during the exchanges before determining a next course of action. A conference call to discuss the matter plus the stalled labour negotiations was held late Tuesday afternoon.
While it's possible they look into filing an unfair labour practice claim, the sense Tuesday was the union is more miffed at another distraction from negotiations than looking to further damage relations with a retaliatory act.
Some members of the players' side regarded the entire exercise as part of a larger plan by the league to extract more concessions, one that appeared to fail miserably when players reported what had happened immediately back to the NHLPA.
"It's a pretty standard management tactic," one said.
Meanwhile, the players remain more perturbed that their three proposals made last week in at union headquarters were given a mere 10 minutes consideration by Bettman and the four owners on hand.
"It took us two days to discuss just one proposal [from the owners] and then work out a response and then it took just 10 minutes for them to say no," said Martin Biron, one of the New York Rangers' player representatives and a member of the NHLPA bargaining committee. "We're working really hard but I feel the NHL is not. It's disappointing and discouraging when in 10 minutes things are dismissed."
Several players also indicated that some of what the owners and GMs told them in their conversations was inaccurate, as was the case with the league's "make whole" provision that results in some players paying others over the life of a six-year proposal.
While owners are hopeful the provision will eventually gain some support and be negotiated from, that doesn't appear likely given the chilly reception it's received from players ever since its proposal early last week.