agreement expires would also inhibit the collective bargaining process, a result that is contrary to the purpose of the nonstatutory exemption. Because agreements often expire without immediate replacement, employers operating under such a rule would in many cases be reluctant to agree to potentially anticompetitive restraints, even where desired by their employees, for fear that such practices would expose them to antitrust suits during any period between agreements.
The federal labor policy of encouraging collective bargaining also requires rejection of the NBA's position that the exemption should continue indefinitely after an agreement expires so long as the employer maintains the status quo by not imposing any new restraints. This facile manner of evading the antitrust laws would discourage unions from entering collective bargaining agreements, since doing so might forever bar them from challenging those restraints in court. Although, as noted above, the rules embodied in a collective bargaining agreement are not automatically disregarded the instant the clock runs out on the agreement, the game cannot last forever.
Thus, a time will come after expiration of the agreement when the practices that were included in the agreement can no longer be said to exist as an extension of the agreement. At such time, those practices are no longer protected by the labor exemption. The relevant question is when that moment occurs.
The players argue that the exemption cannot extend beyond an "impasse" in the negotiations because at that moment, there is no longer mutual consent to the restraints. Impasse is certainly a plausible point at which to end the labor exemption, for by its very definition it implies a deadlock in negotiations, which could in some cases imply that the employees' consent to the restraints of the prior agreement has ended.
The moment of impasse in negotiations is significant, for an employer may, after bargaining with the union to an impasse, make "unilateral changes that are reasonably comprehended within his preimpasse proposals." Taft Broadcasting Co., 163 N.L.R.B. at 476. After impasse, either party is free to decline to negotiate further. Cheney California Lumber Co. v. NLRB, 319 F.2d 375, 380 (9th Cir. 1963).
However, an impasse is not equivalent to the end of negotiations, or the loss of hope that any of the practices subject to negotiation will be incorporated in a new agreement. "As a recurring feature in the bargaining process, impasse is only a temporary deadlock or hiatus in negotiations 'which in almost all cases is eventually broken, through either a change of mind or the application of economic force.'" Charles D. Bonanno Linen Service v. NLRB, 454 U.S. 404, 412, 102 S. Ct. 720, 70 L. Ed. 2d 656 (1982) (quoting Charles D. Bonanno Linen Service, 243 N.L.R.B. 1093, 1093-1094 (1979)). An impasse may be brought about intentionally by one or both parties as a device to further, rather than halt, the bargaining process. "Suspension of the process as a result of an impasse may provide time for reflection and a cooling of tempers; it may be used to demonstrate the depth of a party's commitment to a position taken in the bargaining; or it may increase economic pressure on one or both sides, and thus increase the desire for agreement." Charles Bonanno Linen Service, 243 N.L.R.B. 1093, 1094 (1979), enf'd., 630 F.2d 25 (1st Cir. 1980), aff'd, 454 U.S. 404, 102 S. Ct. 720, 70 L. Ed. 2d 656 (1982).
Because an impasse occurs only when the entire negotiating process has come to a standstill, the prospects for incorporating a particular practice into a collective bargaining agreement may also disappear before a full impasse in the negotiations is actually reached. It is at least theoretically possible for the parties, without ever reaching impasse, to enter a collective bargaining agreement that omits one or more of the practices that were included in the previous agreement.
Thus, impasse is a concept developed to deal with the problems of labor law, not with the unique intersection of labor law and antitrust law at issue in this case. I cannot choose the criteria for determining the endpoint of the labor exemption without reference to its purpose -- encouraging collective bargaining.
An extension of the Mackey formulation produces a rational criterion for declaring when the labor extension expires after termination of the collective bargaining agreement. I find that the exemption for a particular practice survives only as long as the employer continues to impose that restriction unchanged, and reasonably believes that the practice or a close variant of it will be incorporated in the next collective bargaining agreement. When the employer no longer has such a reasonable belief, it is then unilaterally imposing the restriction on its employees, and the restraint can no longer be deemed the product of arm's-length negotiation between the union and the employer.
This formulation is meant to determine the point at which agreement ends on the practices at issue, instead of tying the fate of the exemption to progress in the negotiations as a whole. In any particular case, the exemption may expire before, during or after impasse, and the facts bearing on the impasse question may also bear on the determination of the expiration of the labor exemption. However, they are different questions.
This result is not hampered in this case by the provision in the Robertson settlement agreement reserving the players' "right to challenge in a court of competent jurisdiction any future unilateral imposition [of any practice] by the NBA . . . ." This provision, which appears to be a mutual reservation of rights by the Players Association and the NBA, simply applies where the league unilaterally imposes restrictions. As long as the NBA has a reasonable that a practice may be included in the agreement belief that a practice may be included in the agreement being negotiated, it is not imposing the practice unilaterally; rather, the restriction is deemed a product of arm's-length negotiations.
Quite obviously, application of this rule in the present case involves issues of material fact that cannot be decided on a motion for summary judgment on the present state of the record. Indeed, resolution of this factual matter may not be possible until after the parties have resolved their differences and entered a new collective bargaining agreement. Therefore, I have denied both the players' and the NBA's motions for summary judgment.
The NBA's motion to require joinder of the Players Association is denied, and the players' and the NBA's motions for summary judgment are denied.