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

[Quantas]

Good article by David Naylor of the Globe And Mail:

Looks like the NHL might have a decent chance of getting their impass if that's what they're aiming for. Also interesting is how the NHLPA isn't certified as a union in Quebec and how British Columbia could pose a problem in terms of allowing replacement players.

http://www.theglobeandmail.com/servlet/story/RTGAM.20041215.wxnhl-impasse16/BNStory/Sports/

Click to read more...

 

[Lionel Hutz]

It is very interesting, and nice to get a little clarification on this. However, a one real shortcoming I see in this article is that he gives no evidence supporting his claim that it is no problem in Ontario and Alberta. No lawyer quoted there. My specialty is not labour law, but this flies in the face of what I know of labour law in those provinces. I'm not saying for a second that I know the law in those provinces well enough to say it 100% can't happen, but I do know the law well enough to say that it is less than a slam dunk.

And a question for the american law experts here- I have an admittedly limited understanding of US administrative law, but isn't the NRLB at least somewhat bound by stare decis? The idea that a board can just go off in a brand new direction for reasons of political appointment is very possible, but it just seems ridiculous to me.

 

[mudcrutch79]

It is very interesting, and nice to get a little clarification on this. However, a one real shortcoming I see in this article is that he gives no evidence supporting his claim that it is no problem in Ontario and Alberta. No lawyer quoted there. My specialty is not labour law, but this flies in the face of what I know of labour law in those provinces. I'm not saying for a second that I know the law in those provinces well enough to say it 100% can't happen, but I do know the law well enough to say that it is less than a slam dunk.

And a question for the american law experts here- I have an admittedly limited understanding of US administrative law, but isn't the NRLB at least somewhat bound by stare decis? The idea that a board can just go off in a brand new direction for reasons of political appointment is very possible, but it just seems ridiculous to me.

Uhh, he can say it 100% about Alberta and Ontario because there are no laws banning replacement workers there. I'm baffled as to how it's a problem in BC-the NHLPA is certified in BC but not Quebec? That doesn't make sense. I'd like to see someone ask a government official about this, as opposed to a labour lawyer who is apparently assuming that they are certified there.

They're bound by stare decisis, same as in Canada, but the thing is, generally it's just a test with a list of factors. You can interpret the factors in many different ways. If their judicial standard of review is the same as ours-patently unreasonable-it's unlikely it'd get overturned by a judge.

 

[Lionel Hutz]

Uhh, he can say it 100% about Alberta and Ontario because there are no laws banning replacement workers there. I'm baffled as to how it's a problem in BC-the NHLPA is certified in BC but not Quebec? That doesn't make sense. I'd like to see someone ask a government official about this, as opposed to a labour lawyer who is apparently assuming that they are certified there.

Hmm, interesting. I stand corrcted, in Ontario the legislation was repealed in 1995, and there was legislation proposed in 2003 to make it illegal again. I missed that.

They're bound by stare decisis, same as in Canada, but the thing is, generally it's just a test with a list of factors. You can interpret the factors in many different ways. If their judicial standard of review is the same as ours-patently unreasonable-it's unlikely it'd get overturned by a judge.

Thanks, not what I was asking.

 

[SENSible1*]

Very interesting article.

I'd send a copy of this and Marvin Miller's assessment of Goodenow's performance to every NHLPA member if I was the NHL.

 

[Puck]

I'm also wondering if players of Canadian teams would be subject to the same provisions in an imposed US collective agreement. If they haven't signed it that is and it is imposed by NLRB decisions.

It is a good pressure tactic to tell NHL players that if they don't come to an agreement, the league can go to a Republican appointed Labor Board and they'll all be forced to work under these new rules. But if the NHLPA, representing NHL players in Canadian teams, doesn't accept this agreement, then US NLRB rules may not apply in Canada.

This wouldn't come up if the NHL and NHLPA all agree and happily sign the collective agreement. But if they don't, US and Canadian laws differ and the Canadian teams are subject to laws under provincial jurisdiction (except Quebec if the NHLPA hasn't been accredited in that province but even the Canadiens probably wouldn't be subject to US decisions).

So I'm just wondering if in 2006, you could have players in 24 US teams operating under different rules compared to players in 6 Canadian clubs. It would be funny if the various Canadian provincial labour relations boards came to different conclusions as the US board....

 

[vanlady]

The NLRB has been Republican controlled for most of the last 50 years. In the last 50 years there has only been 2 Democratic chairman and only 19 of 54 seats have been democratic. As a matter of fact the US Supreme Court precendents that apply in this situation, Katz, McLatchy and GE all were from Republican boards. Oh and in the last two years the Republican controlled board has only upheld 2 of 27 impasses.

 

[mudcrutch79]

I'm also wondering if players of Canadian teams would be subject to the same provisions in an imposed US collective agreement. If they haven't signed it that is and it is imposed by NLRB decisions.

It is a good pressure tactic to tell NHL players that if they don't come to an agreement, the league can go to a Republican appointed Labor Board and they'll all be forced to work under these new rules. But if the NHLPA, representing NHL players in Canadian teams, doesn't accept this agreement, then US NLRB rules may not apply in Canada.

There's a good article in the UBC Law Review which implies that it may not be legal.

So I'm just wondering if in 2006, you could have players in 24 US teams operating under different rules compared to players in 6 Canadian clubs. It would be funny if the various Canadian provincial labour relations boards came to different conclusions as the US board....

I'm still mystified as to how the Canadian labour relations boards can claim jurisdiction. It blows my mind.

 

[mudcrutch79]

Thanks, not what I was asking.

What exactly are you asking then? You wanted to know if stare decisis means that the NLRB can't declare an impasse. The answer is "no".

 

[Epsilon]

I'm still mystified as to how the Canadian labour relations boards can claim jurisdiction. It blows my mind.

Because those clubs and their workers are incorporated in Canadian provinces. The NHL itself is not the sole business involved here.

 

[Lionel Hutz]

What exactly are you asking then? You wanted to know if stare decisis means that the NLRB can't declare an impasse. The answer is "no".

Where did I ask if stare decisis meant that?

That's not what I wanted to know, and that's not what the question asked. The question was concerning the talk that the board may be more business friendly and suggestions that it will make different rulings than when it did when it was less republican. One of the principles of stare decisis is that rulings by given level of court /tribunal are to be taken at the very least as pursuasive authority by that level of court/tribunal. You need a reason to over-rule your own decision. So if they are bound, then how is it possible for a board to move off in a new direction simply b/c a bunch of republicans replaced the Democrats?

 

[Lionel Hutz]

There's a good article in the UBC Law Review which implies that it may not be legal.



I'm still mystified as to how the Canadian labour relations boards can claim jurisdiction. It blows my mind.

Why wouldn't they? Its labour, the provinces have jurisdiction over labour, and its in the province.

 

[MojoJojo]

How are replacement players any different than the AHL? I dont pay to watch people wear the team logo, I play to watch the best hockey players.

 

[mudcrutch79]

Why wouldn't they? Its labour, the provinces have jurisdiction over labour, and its in the province.

I posted an OLRB decision in an earlier thread where they refused to certify a bargaining unit that included employees outside the province. They reasoned that they didn't have any jurisdiction over the employees who weren't in the province. Unless the NHLPA has separate bargaining units for the various provinces, I don't see how the various LRA's have jurisdiction.

 

[thinkwild]

I'm still mystified as to how the Canadian labour relations boards can claim jurisdiction. It blows my mind.

Where do the Ottawa Senators pay taxes? They are a single company operating in Ontario. But I guess I can see the case for a jurisidictional battle being difficult.


Even if the Owners win their impasse its not the end of anything. The players can still strike, and the owners can still be far from a solution for a healthy industry.

 

[SENSible1*]

Where do the Ottawa Senators pay taxes? They are a single company operating in Ontario. But I guess I can see the case for a jurisidictional battle being difficult.


Even if the Owners win their impasse its not the end of anything. The players can still strike, and the owners can still be far from a solution for a healthy industry.

Hope they enjoy the picket line. I'm not sure marching around outside the Corel Centre hours at a time for $10,000 a month will seem like such a great idea during January when its -30 (before windchill).

 

[mudcrutch79]

Hope they enjoy the picket line. I'm not sure marching around outside the Corel Centre hours at a time for $10,000 a month will seem like such a great idea during January when its -30 (before windchill).

I'll do it.

 

[Lionel Hutz]

I posted an OLRB decision in an earlier thread where they refused to certify a bargaining unit that included employees outside the province. They reasoned that they didn't have any jurisdiction over the employees who weren't in the province. Unless the NHLPA has separate bargaining units for the various provinces, I don't see how the various LRA's have jurisdiction.

That is interesting. Could a distinction be drawn based on the fact that the Senators are the sole employers? I don't really know the NHLPA's make-up enough to comment on the seperate units. So, for example, CAW, have different units certified in each province?

I have a little bit of difficulty with it b/c in order to have jurisdiction under most legislation, you don't have to operate solely in that province. For example, for incorporation, you can incorporate in Saskatchewan, and also carry on business in Ontario. The corporation will still attract the jurisdiction of courts and tribunals in Ontario, for their actions in Ontario.

Just an off the cuff thought, again, Labour law is not my thing, but I find it difficult to envision the board not having jurisdiction over workers in their province.

Its also hard to beleive that the NHLPA 1) didn't certify in Quebec and 2) if they don't have different units for the provinces and the law is that they are required to, that they were not aware and/or didn't do this. Not exactly dilligent.

 

[mudcrutch79]

That is interesting. Could a distinction be drawn based on the fact that the Senators are the sole employers? I don't really know the NHLPA's make-up enough to comment on the seperate units. So, for example, CAW, have different units certified in each province?

I don't think so. The decision that I was looking at involved MacLeans operating in Toronto. Single employer and all that, but the board refused to certify the proposed bargaining unit because they didn't think that they could exercise jurisdiction over employees outside the province. I suspect that the NHLPA would have to be recognized under the Canadian Labour Code if anyone was going to recognize them.

Just an off the cuff thought, again, Labour law is not my thing, but I find it difficult to envision the board not having jurisdiction over workers in their province.

I suspect that the certification of the NHLPA has never been challenged in any Canadian jurisdiction. All of the filing of unfair labour complaints appears to have been done in the US. If the employer has never challenged the appropriateness of the unit, the Board generally won't get involved, at least in Canada. If the NHL were to use replacement players, and use them in Canada, I'd be really interested to see if they would use them in BC, because I think they'd have a strong argument that the BC Labour Relations Act doesn't apply. Of course, if it were to turn out that they were wrong, they could get stuck with a ruling requring them to pay regular contract wages as damages. I suspect that they don't want to know that badly.

Its also hard to beleive that the NHLPA 1) didn't certify in Quebec and 2) if they don't have different units for the provinces and the law is that they are required to, that they were not aware and/or didn't do this. Not exactly dilligent.

I think it's understandable. A big part of the reason for certification is to force the employer to recognize and bargain with you. That's never been an issue here, so the reasons for applying for certification are greatly reduced.

 

[Lionel Hutz]

I don't think so. The decision that I was looking at involved MacLeans operating in Toronto. Single employer and all that, but the board refused to certify the proposed bargaining unit because they didn't think that they could exercise jurisdiction over employees outside the province. I suspect that the NHLPA would have to be recognized under the Canadian Labour Code if anyone was going to recognize them.

I would think that the Canadian labour code would have less of an argument for jurisdiction. Its a provincial responsibility, and the federal legislation exists for areas of nationwide importance. I wouldn't say that 6 corporations in 4 provinces qualifies.

I think it's understandable. A big part of the reason for certification is to force the employer to recognize and bargain with you. That's never been an issue here, so the reasons for applying for certification are greatly reduced.

No, its never been an issue, but they've been getting ready for armageddon for years now, don't you think the NHLPA and their lawyers should have looked into it?

 

[mudcrutch79]

I would think that the Canadian labour code would have less of an argument for jurisdiction. Its a provincial responsibility, and the federal legislation exists for areas of nationwide importance. I wouldn't say that 6 corporations in 4 provinces meet qualify.

Their proposed bargaining unit involves players in the US, assuming a league wide one. I'd say that falls under the feds power to regulate trade and commerce. Any effect on civil rights in the province would seem to be necessarily incidental to me. That seemed to be the view of the OLRB in this one case...I really should give you a citation. Warning though, I got a C+ in Constitutional law, so I could be wrong.

No, its never been an issue, but they've been getting ready for armageddon for years now, don't you think the NHLPA and their lawyers should have looked into it?

It's a situation though where if you think you might lose, you might be better off not even trying to certify-why risk having it made clear that that the BC Labour Relations Act doesn't apply? At least now, if the NHL wants to use replacement players in BC, they're taking a big risk by doing it. If you go and lose, that hammer's gone. I'd rather have the threat myself.

 

[mudcrutch79]

Where did I ask if stare decisis meant that?

That's not what I wanted to know, and that's not what the question asked. The question was concerning the talk that the board may be more business friendly and suggestions that it will make different rulings than when it did when it was less republican. One of the principles of stare decisis is that rulings by given level of court /tribunal are to be taken at the very least as pursuasive authority by that level of court/tribunal. You need a reason to over-rule your own decision. So if they are bound, then how is it possible for a board to move off in a new direction simply b/c a bunch of republicans replaced the Democrats?

And I'm saying that stare decisis won't have much of an impact. These things tend to be pretty fact specific, which provides an opportunity for the biases of the adjudicators to come into play. It's not like laying out a principle of common law or something, it's applying a test that's generally pretty fact specific. You're not overruling the law, you're applying it to a given set of facts.

Not to mention that this is America, where political biases are much more accepted in judicial type proceedings. Look how many times the USSC has ruled on Roe v. Wade. Stare decisis doesn't seem to be much of a concern, the specific ruling seems to change with the makeup of the bench.

 

[Lionel Hutz]

Their proposed bargaining unit involves players in the US, assuming a league wide one. I'd say that falls under the feds power to regulate trade and commerce. Any effect on civil rights in the province would seem to be necessarily incidental to me. That seemed to be the view of the OLRB in this one case...I really should give you a citation. Warning though, I got a C+ in Constitutional law, so I could be wrong.

Thats a very good point, I put the cart before the horse and never actually contemplated what the source of the authority was, I assumed it was solely provincial jurisdiction. I didn't catch from your earlier statement that this was what you were getting at.

It's a situation though where if you think you might lose, you might be better off not even trying to certify-why risk having it made clear that that the BC Labour Relations Act doesn't apply? At least now, if the NHL wants to use replacement players in BC, they're taking a big risk by doing it. If you go and lose, that hammer's gone. I'd rather have the threat myself.

In the alternative, they could try for Provincial and Federal certification. What is the federal legislation on replacement workers? I see what you mean, it is a risk, but surely one of the two would apply. If it is the case that neither can apply, then the whole union is a sham in Canada, and again, they should have done their homework and made sure they had a legal union in Canada when they set the thing up, whatever that would take.

 

[mudcrutch79]

In the alternative, they could try for Provincial and Federal certification. What is the federal legislation on replacement workers? I see what you mean, it is a risk, but surely one of the two would apply. If it is the case that neither can apply, then the whole union is a sham in Canada, and again, they should have done their homework and made sure they had a legal union in Canada when they set the thing up, whatever that would take.

Federal law permits replacement workers, so they've got nothing there. I wonder if the Canadian Board would even certify though, if they knew that the organization was certified in the US? It seems kind of odd to have them certified under two different jurisdictions. I'm going to actually look this one up, and see what I can find.

As to whether the orders of the NLRB could be enforced against the Flames or Canucks...who knows? I suspect that Canada and the US have a treaty in place to recognize judgments somewhere, although I wouldn't know where to look for that.

 

[Lionel Hutz]

Federal law permits replacement workers, so they've got nothing there. I wonder if the Canadian Board would even certify though, if they knew that the organization was certified in the US? It seems kind of odd to have them certified under two different jurisdictions. I'm going to actually look this one up, and see what I can find.

As to whether the orders of the NLRB could be enforced against the Flames or Canucks...who knows? I suspect that Canada and the US have a treaty in place to recognize judgments somewhere, although I wouldn't know where to look for that.

In Civ Pro we covered reciprocal judgement agreements, and, they exist only between the provinces and not any foreign jurisdictions. To my knowledge it is left to the common law. That being said, Morrguard (in the context of breach of contract suit) sets the standard for enforcing foreign judgments and it is long and convoluted. Basically, as I recall, it is likely, but the judgment being contrary to a law in force in the province makes it problematic (its one of like 8 factors contemplated in that case).