I'm listening to Bob McCown right now and he had an interesting theory that reportedly came from an owner. I may have some of the details wrong, but the basic theory was that if they cancel the season, in the spring the NHL could say "Here is the new deal, take it or leave it", and drop the lockout. Then the players would be forced to either accept the deal, or go on strike. However, his speculation was, at that point, at least a third of the players, maybe even half, would opt to cross the picket line and report to work. This would essentially break the back of the union.
My question is... legally, can the NHL even do that if they wanted to? Or are they required to come to an agreement with the NHLPA before opening the doors?
I am 99% sure this cannot happen. The owners cannot grant a reduced CBA to a group of players unless it is ratified, even if that group is comprised of ones that defy their union and cross a picket line. In short, they can't say 'whoever wants to play for 43% come over and sign.' The agreement has to be ratified by the membership. On top of that, a lot of Unions have rules on what you can and cannot due during a labour dispute (usually centred around where you can work), and clearly they would not allow their members to be scabs. There most likely would be hefty fines and they would no longer be members in good standing. If the owners lift the stike without a new deal, most labour law states that the old, expired CBA is in effect (players get 57%). Clearly the owners would never do this.The only way this could happen is if the NHLPA decertified, thereby relinquishing their exclusive right to bargain with the NHL. Then the NHL could hire anyone they want as players, including members of the current NHLPA.