Article on the NLRB and the NHL's chances of declaring an impass

[mudcrutch79]

At the end of Burke's show on the radio tonight, he mentioned that he'd talked to some Vancouver labour lawyers who think it's possible that there could be replacement players used in BC. That's just more evidence in my mind that the BC Labour Relations Act doesn't apply.

 

[me2]

At the end of Burke's show on the radio tonight, he mentioned that he'd talked to some Vancouver labour lawyers who think it's possible that there could be replacement players used in BC. That's just more evidence in my mind that the BC Labour Relations Act doesn't apply.

Doesn't apply or might be tested to see if it applies?

 

[Puck]

I am absolutely positive that the 6 Canadian teams come under the respective provincial jurisdictions they play in. I was a bit surprised myself to find this. The provinces have jurisdiction over the entertainment, leisure, hospitality sector in Canada but the federal govt. would have jurisdiction over international agreements, however....Labour Canada now the federal Labour Program at Human Resources and Skills Development Canada (HRSDC) has jurisdiction over only 10% of the Canadian labour scene. In the US, it's the opposite, the US govt. has jurisdiction over 90% of the labour market there. Canada is more de-centralized.

It seems the NHLPA is certified in every province except Quebec, according to a knowlegable poster here. I didn't know that 'Quebec' part until reading it yesterday.

I will check into whether the Canada Labour Code allows replacement workers. I thought that they had banned replacement workers after the violence and death at Royal Oak Mines in the Yukon when the gold mine owner allowed replacements in the 90's and started her personal war with the union.

If the NHL goes the US NLRB route, I am positive the NHLPA could legally undermine the NHL in Canada. They could appeal to all provincial labour relations boards (they'd probably get a sympathetic hearing in every province except Alberta). They could even get just the Canadian players to decertify from the NHLPA in a peaceful way and recertify in Canada as the Canadian NHLPA. Until they negotiate a 'first time agreement' with the NHL, they could ask to play under the terms of the previously signed CBA which is still legally in effect, not the US NLRB imposed one.

The NHL could complain and ask that the Canadian NHLPA be certified under the Federal Code so they wouldn't have to deal with 4 different jurisdictions. The govt. would probably comply at that point.

It would be funny if the Canadian teams could operate without a cap. Hey if you think this is ridiculous, just think what could happen if the NHL ever expands in Europe and falls under Euro jurisdiction. There is a whole mess of legalities that would have to be ironed out first.

 

[mudcrutch79]

It seems the NHLPA is certified in every province except Quebec, according to a knowlegable poster here. I didn't know that 'Quebec' part until reading it yesterday.

What's the factual basis for that statement? Is it anything other than a condensement of the speculation in the papers?

I will check into whether the Canada Labour Code allows replacement workers. I thought that they had banned replacement workers after the violence and death at Royal Oak Mines in the Yukon when the gold mine owner allowed replacements in the 90's and started her personal war with the union.

I just took a labour law course, they do allow replacement workers, provided that they aren't being used to undermine the union.

If the NHL goes the US NLRB route, I am positive the NHLPA could legally undermine the NHL in Canada. They could appeal to all provincial labour relations boards (they'd probably get a sympathetic hearing in every province except Alberta). They could even get just the Canadian players to decertify from the NHLPA in a peaceful way and recertify in Canada as the Canadian NHLPA. Until they negotiate a 'first time agreement' with the NHL, they could ask to play under the terms of the previously signed CBA which is still legally in effect, not the US NLRB imposed one.

On what basis? You can't just go to the labour board and say "They aren't doing what we want them to." If they were to try recertify as the Canadian NHLPA, you'd probably see a hell of a certification battle on the part of the NHL, who would argue that the broader unit is more appropriate.

The NHL could complain and ask that the Canadian NHLPA be certified under the Federal Code so they wouldn't have to deal with 4 different jurisdictions. The govt. would probably comply at that point.

Actually, if the players were to certify as team units, or provincially, there'd be an argument to be made that they were doing so in accordance with the law. I still think that the NHL would argue that the only appropriate bargaining unit is one consisting of all the players in the league though. Then you'd have the problem of the Oilers bargaining unit deciding to sit out much longer to try and force management's hand-how is a league supposed to proceed on this basis? It's not feasible.

 

[Puck]

Doesn't apply or might be tested to see if it applies?

I heard that the Canucks could try to register as a US corporation next door in Washington and claim to fall under US jurisdiction. I doubt an appeal to the BCLRB would allow that. What a precedent. Tons of BC companies who don't like BC labour laws would go register in the states to claim the international exception.

I think the Canucks would have to move to, and play in Seattle or Portland to circumvent Canadian labour laws. At least until the mess settles. At that point, they would supremely upset Vancouver fans.

 

[Lionel Hutz]

Not to mention the fact that trying to certify what is essentially a new union at this stage, well, they've never been a party to the CBA, so how could they have standing?

 

[mudcrutch79]

Doesn't apply or might be tested to see if it applies?

With the penalties that the organization could face for using scabs in terms of what the LRB could do to them, no one would do this unless they were damn sure it didn't apply. They aren't interested in running a test case, IMO.

 

[Puck]

What's the factual basis for that statement? Is it anything other than a condensement of the speculation in the papers?

I just took a labour law course, they do allow replacement workers, provided that they aren't being used to undermine the union.

On what basis? You can't just go to the labour board and say "They aren't doing what we want them to." If they were to try recertify as the Canadian NHLPA, you'd probably see a hell of a certification battle on the part of the NHL, who would argue that the broader unit is more appropriate.

Actually, if the players were to certify as team units, or provincially, there'd be an argument to be made that they were doing so in accordance with the law. I still think that the NHL would argue that the only appropriate bargaining unit is one consisting of all the players in the league though. Then you'd have the problem of the Oilers bargaining unit deciding to sit out much longer to try and force management's hand-how is a league supposed to proceed on this basis? It's not feasible.

The NHLPA members are already saying that the NHL's goal is to bust the union. I'm sure they would argue the NHL is undermining the union.

The NHL would probably fight the NHLPA's recertification. The argument to deal with a broader unit might be a good one so that the NHL would have deal with one Canadian bargaining unit in Canada, not six. Whether they would win the argument that they don't have to deal with 2 bargaining units, one in Canada and one in the US, on the other hand, is not so sure IMHO.

General Motors, Ford, Chrysler all have to deal with a Canadian union that can shut down its plants. A union on one side of the border or the other can cause parts shortages for another country's plant. This stuff does happen. Life is tough.

I don't think it will ever get to that mudcrutch. We are just arguing for agument's sake. But if the NLRB bargaining chip can be used to intimidate the players and their rights to refuse to sign an agreement, then there are tools the NHLPA can use to undermine the NHL. I would think differences in international labour law could be one dimension to foil the NHL's plans to circumvent the union.

I doubt Canada would just easily give away its jurisdiction to the NLRB over such a visible industry. At this time, they just look the other way because nobody is complaining.

 

[mudcrutch79]

I don't think it will ever get to that mudcrutch. We are just arguing for agument's sake.

An all too common trait for those of us who go to law school.

 

[Puck]

An all too common trait for those of us who go to law school.

99% of posters on this board probably have a law degree then

 

[Puck]

Not to mention the fact that trying to certify what is essentially a new union at this stage, well, they've never been a party to the CBA, so how could they have standing?

looking for bugs eh. ok. then they just negotiate a first time agreement, the other CBA doesn't apply. players on teams that aren't in the hunt for the playoffs go on a rotating strike. ouch. The nhl tries to operate but the players on Canadian teams play legal tactics to undermine the nhl in new york hq because they circumvented the nhlpa through an NLRB decision.....the nhl still has to deal with a new bargaining unit with cranky members.

 

[mudcrutch79]

looking for bugs eh. ok. then they just negotiate a first time agreement, the other CBA doesn't apply. players on teams that aren't in the hunt for the playoffs go on a rotating strike. ouch. The nhl tries to operate but the players on Canadian teams play legal tactics to undermine the nhl in new york hq because they circumvented the nhlpa through an NLRB decision.....the nhl still has to deal with a new bargaining unit with cranky members.

I'm not 100% sure, but I think that if these separate unions were operating together, there'd be violations of competition law. It'd be quite the legal mess, that's for sure.

 

[SENSible1*]

I'll do it.

But you don't have the option to just sign a fair deal and make 10-30 times that amount playing a game inside the CC.

 

[Puck]

Yeah, the NHL and PA could be in court for years. The PA might win some cases causing precedents other leagues would be p.o.'d with the NHL for creating.

I don't even know if the NLRB in the US could force a cap if things went the impasse route. The NLRB still can't really impose provisions that would be illegal under anti-trust law or some some restrictive marketplace laws. Of course bureaucrats do what they want until you take them to court.

Heck. People cite the football experience, the NFL union never put up much of a fight. And they aren't international. In basketball, the union agreed to it.

Canada and the US have a free trade agreement only, it isn't a full economic union with bilateral labour arrangements. In Canada, Canadian labour codes apply. The NLRB decisions might prove to be toast in Canada, if the NHLPA fights it.

The NHL needs the PA's signature to impose a cap in the US I believe; otherwise why wouldn't they just agree to it amongst themselves. Perhaps the reason the NHL is going the CBA route for a cap is because of the anti-trust laws or to circumvent restriction of trade or free marketplace rules? And then they would go to the NLRB to circumvent the union that won't sign to allow the NHL to circumvent the Sherman Act? Uh huh. I don't get it. I'd need Tom Benjamin to explain all this to me..

The NHLPA could play the Canadian card if things got that far. Gee, we are not even beyond Betman's drop-dead date for league closure, yet.

 

[vanlady]

The answer to all your questions lies in the 94 baseball dispute. Just before MLB declared impasse in 94 the Ontario goverment passed anti scab legislation at the urging of the Canadian Labor Congress. The Blue Jays never played a game with scab workers, on Canadian soil, they played in Florida. By the way the Province of Ontario is talking about dusting off that legislation just for the NHL. They don't want the dangerous precendent set that could effect large corporations in the province.

The NHLPA has been certified since 1976. Why aren't they certified in Quebec, because Quebec has strange laws reguarding percentage of workers inside the province and biligual laws also.

As far as BC goes the government is not going to do anything that could jeopardize the election in May, and even so the likelyhood of the Liberals maintaining there current position is not looking great. Being that this province is highly unionized, don't bet on replacement workers any time soon.

 

[mudcrutch79]

The answer to all your questions lies in the 94 baseball dispute. Just before MLB declared impasse in 94 the Ontario goverment passed anti scab legislation at the urging of the Canadian Labor Congress. The Blue Jays never played a game with scab workers, on Canadian soil, they played in Florida. By the way the Province of Ontario is talking about dusting off that legislation just for the NHL. They don't want the dangerous precendent set that could effect large corporations in the province.

I'm going to guess that the no replacement workers thing had little, if anything to do with the baseball strike. Given that the change was made in 1993, I doubt the potential impact of a baseball strike was considered. As well, that was an NDP government, so it would be legislation that they'd be inclined to introduce anyway.

The NHLPA has been certified since 1976. Why aren't they certified in Quebec, because Quebec has strange laws reguarding percentage of workers inside the province and biligual laws also.

Yeah, that and the Constitution. From the Supreme Court decision in New Brunswick (Labour Relations Board) v. Eastern Bakeries

The fact of proximity in the present instance does not distinguish it from the case where employees of a company in Toronto may do work similar to that of other employees of the same company in the same category residing and working in Montreal. Such latter employees could not be included by an Ontario Labour Relations Board under similar legislation in Ontario for the purpose of declaring a bargaining unit.

In other decisions, the OLRB has said that they don't have jurisdiction to certify a bargaining unit containing members who work outside of Ontario. The NHLPA is no doubt certified, but it isn't in any province.

As far as BC goes the government is not going to do anything that could jeopardize the election in May, and even so the likelyhood of the Liberals maintaining there current position is not looking great. Being that this province is highly unionized, don't bet on replacement workers any time soon.

???? How much success has the union movement in BC had in moving the government so far? Gord Campbell has done everything short of having Buzz Hargrove's head cut off and mounted on a pole in front of the legislature. I doubt it will be much of a problem.

 

[Puck]

Regarding the baseball strike in 1994

"With the strike underway, owners imposed a salary cap unilaterally. The players responded by declaring all unsigned players free agents. The league also locked out umpires."

"In the end, the U.S. National Labor Relations board ended the strike by forcing owners to withdraw their unilateral changes. Both sides were told to play for the next two seasons under the previous collective agreement."

"Despite the strike ending, the owners had not yet settled their dispute with umpires, and Ontario law would not allow the use of replacement umpires. The last vestiges of the baseball strike ended on May 1, 1995, when owners and umpires reached a five-year agreement."

http://archives.cbc.ca/400d.asp?id=1-41-1430-9214&wm6=1

 

[mudcrutch79]

Yeah, everyone says this, but no one explains how it works. If the Ontario Labour Relations Board has jurisdiction over unions that aren't certified in the province, that's news to me. I don't see how any of these unions could certify here...it doesn't make sense. If someone can show me a case where the OLRB has taken jurisdiction over a case involving a bargaining unit that they didn't certify, I'd love to see it.

 

[Puck]

Federal and provincial labour codes apply to all workers in their jurisdictions, unionized and non-unionized. So maybe they just treat them as non-unionized workers if the PA isn't certified but the employees still come under the labour code for that jurisdiction. (i.e. OLRB wouldn't stop them, the govt. would or the Dept. of Labour)

 

[Lionel Hutz]

I thought this was fairly simple, but clearly I now beleive this calls for a L'Heureux Dube dissent.

 

[mudcrutch79]

I thought this was fairly simple, but clearly I now beleive this calls for a L'Heureux Dube dissent.

Don't get me started on her...there is no SCC judge I dislike more. Not only does she create extra reading for me with her dissents, they're asinine to boot. I don't miss her at all.