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Baseball's "Secret Police" as Unfair Labor Practice?

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

The Umpires' union is upset about Major League Baseball's agressive background investigations of its members. According to ESPN, MLB began to conduct checks on umpires in the wake of the Tim Donaghy scandal in the NBA.

The union has not decided whether or not to pursue legal action. Although members have characterized the questions asked as "defamatory" (for instance, "Is umpire __ a member of the KKK?"), it doesn't seem like a tort claim would have legs. Intead, the issue would likely be whether an employer can unilaterally implement background investigations of union members. This would turn on whether a background investigation amounts to a "condition of employment" and is therefore a mandatory item of collective bargaining (an issue that we have discussed on the blog a number of times, such as here and here).

I am aware of only two cases touching on the unilateral implementation of background checks of union members. After September 11, airlines conducted background checks of various airline employees. In Aircraft Mechanics Fraternal Ass'n v. Northwest Airlines, 2002 WL 598418 (D. Minn. 2002) (unpublished opinion), a union sought to stop criminal background checks of its members, claiming that the checks were a "repudiation" of the collective bargaining agreement. The court did not address whether unilateral implementation of background checks needed to be negotiated because it found that the CBA expressly authorized Northwest to make the change: "the CBA explicitly allows Northwest to promulgate 'rules, regulations, and orders ... which are not in conflict with the provisions of [the CBA] or applicable state or federal law.'"

However, in Board of Educ. of City School Dist. of City of New York v. New York State Public Employment Relations Board, 75 N.Y.2d 550 (N.Y. 1990), the New York high court found that financial disclosure requirements and background checks of school employees were a mandatory item of collective bargaining.

How would the umpires' union fare were it to file an unfair labor practice charge based on the background checks? Is there a provision in the umpires' CBA that allows baseball to take such action? (Perhaps a "best interests of the sport" clause?).

Full post as published by Sports Law Blog on January 31, 2008 (boomark / email).