There's a lot here to unpack and correct.

It would be mean to start with the homophone, so instead, I'll just say, don't take legal advice from this guy.

The standard is not "sufficient good faith efforts." That's a whole load of made up nonsense. I wrote about impasse two 1/
years ago. I mistagged the wrong Ken Rosenthal, but the rest is still good. It's a long thread explaining what the NLRB looks at when determining an impasse. 2/
But, if the parties actually reach impasse, then one of the new tools available to management is to unilaterally implement its last, best offer. But, would that change anything? Nope.

We still would nave NO BASEBALL. You want to know why? It's because the players would 3/
immediately authorize a strike and go on strike. So, it wouldn't' accomplish a damn thing to unilaterally implement a last, best offer.
But, in the instant situation the parties are not at impasse, so this is all moot.
It's also important to remember what happened in 1994-95. 4/
MLB followed that exact path. And, it stepped on its own dick in the process. It unilaterally implemented in the absence of impasse, which was, in opinion of then Judge, now Justice Sonya Sotomayor an Unfair Labor Practice. Please read this case. 5/…
It gives a very good summary of the duty to bargain in good faith, how MLB failed to meet that duty and what the appropriate remedy is. The remedy is restoration of the status quo ante, which in the instant situation is a CBA without a CBT.

This lockout is almost exclusively 6/
because there (their*) is not a CBT in effect right now. That's the last thing MLB wants. Instead, management will just keep their lockout in place until there is at least a tentative agreement in place, headed for ratification.

*It was mean.
I probably should mention this. An arbitrary deadline for ending bargaining is not impasse. Like a baseball game, there is no time limit in collective bargaining. It ain't over until it's over. Missing games is b/c of the management imposed lockout. The duty to bargain endures.

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More from @EugeneFreedman

Feb 24
Ken wrote an interesting piece today that I want to spend a little time discussing. Yesterday, I made a general warning not to spend too much time reading articles about how to resolve the difference between the parties. I'll give you some reasons why in this thread: 1/
We only know the basics of every proposal. If you were to look at the MLB-MLBPA CBA, it has long articles, particularly the ones on complex subjects like the luxury tax/competitive balance tax, free agency, arbitration eligibility, service time, and a host of other subjects. 2/
Knowing what's been reported in a proposal sheds no light on the language underlying the articles of the CBA that is sometimes more important than the financial differences themselves.

2) We don't know the relative value that each party places on different provisions. 3/
Read 16 tweets
Feb 24
Here, Maury is saying the cause of the lockout is the absence of a CBT. Management would not agree to any CBA without one and they would not go forward this season without one.

I have said repeatedly, in the absence of a lockout the CBA would continue in full force and effect 1/
and that the CBT is not part of the current CBA that would continue. His details basically make that academic, because management cannot live without its CBT.

Of course, negotiating to impasse and unilaterally imposing a last, best offer isn't child's play. MLB screwed it up 2/
in 1994-5 and the status quo ante was restored by the NLRB seeking an injunction in court.

If MLB was willing to force impasse so that it could unilaterally implement a CBT - that in and of itself is bad faith to the extent that they would not be seeking to reach agreement, 3/
Read 4 tweets
Feb 24
For new readers I have a more than a few threads you may want to revisit from November-now. This thread will contain links to other threads you may be interested in reading.

On MLB's proposal re: free agent eligibility: 1/
On why MLB was going to lock out players when the CBA expired (it's the competitive balance tax).
Read 7 tweets
Feb 24
Dan raises an interesting question. The duty to bargain in good faith is a totality of the circumstances test (although there are several things that are bright line violations). The problem is that the public, including me, are not privy to all fo the details. The Board 1/
has found "The essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground." It's hard to say management has done so here.

It has put on a facade of bargaining, meeting and making proposals, as such, but hasn't been willing to 2/
discuss many of the Union's proposals, as I've covered elsewhere. It also spent an inordinate amount of time doing nothing, both after it implemented the lockout and after another round of bargaining when it requested mediation and refused to make a proposal.

I discussed a 3/
Read 9 tweets
Feb 23
MLB may have asked for mediation because of internal communication problems/misunderstandings. Owners may have mistakenly believed that a lockout would pressure players to give in. Now that they haven't, they don't know how to get out of the box they've built for themselves. 1/
Ending the lockout would appear weak without a no strike agreement, which they aren't going to get. I addressed the timing & leverage of a strike vote & strike in this thread. 2/

But, continuing it will cost games and the honest media has appropriately framed this as a ownership lockout of the players and reminded readers that the lockout is what will cost games, not the lack of agreement.

There is one way out of the box. It's to address the Union's 3/
Read 8 tweets
Feb 22
Owners want to both control expenses completely & have unlimited revenues. They believe players will bend if not break on these subjects. It's a new group of owners who didn't live through 70s/80s or 94-95. They think they will win absolutely. Only solidarity will counter that.
With regard to controlling expenses, what they really want is an agreement with the Union to control the expenses of the owners who would otherwise spend more in order to try to win championships. It's anti-competitive at its core, yet it's called the "competitive balance tax."
I know that ship has sailed and the Union has proposed a CBT of its own already, but the phrase a rising tide lifts all boats applies both ways. When the top of the market is artificially restricted, the bottom of the market sinks as well.
Read 4 tweets

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