BC LRB allows the NHLPA to continue towards Union Status

[Mess]

From TSN

NHLPA certification bid to proceed in B.C.
Canadian Press
5/6/2005 3:30:10 PM

VANCOUVER (CP) - The B.C. Labour Relations Board has ruled the National Hockey League Players' Association can proceed with its application to have the union certified in the province.

In a decision handed down Friday, the board rejected arguments by a lawyer representing the National Hockey League that allowing the hearing to proceed would signal a disregard for U.S. labour law.

Najeeb Hassan, the board's vice-chairman, also dismissed the idea that allowing the application hearing would hinder the ability of the NHLPA and the NHL to reach an agreement that would end the current hockey labour dispute.

No date has been set for the certification hearing.

The NHLPA has applied for union certification in Quebec and British Columbia, a move intended to block the potential use of replacement players in those provinces.

During a hearing Tuesday in Vancouver, Peter Gall, the lawyer representing the NHL and the owners of the Vancouver Canucks, argued the NHLPA's application for union certification should be adjourned until an unfair labour practice complaint is heard by the National Labour Relations Board in the United States.

Nassan dismissed that argument.

Full Story: http://www.tsn.ca/nhl/news_story.asp?ID=124054&hubName=nhl

Click to read more...

 

[Jarqui]

Neither Quebec nor B.C. allow the use of replacement workers during strikes or lockouts, but that's only when the workers being replaced belong to certified unions.

Does anyone know the legal basis by which that article makes that statement ? It doesn't jive with the "voluntary recognition" clause, does it ?

 

[vanlady]

Neither Quebec nor B.C. allow the use of replacement workers during strikes or lockouts, but that's only when the workers being replaced belong to certified unions.

Does anyone know the legal basis by which that article makes that statement ? It doesn't jive with the "voluntary recognition" clause, does it ?

The certified comment belongs to Quebec labor law. Hassan's full decision is a good read. He sure did not like the NHL disrespect of the boards juridiction, that was obvious. If they go in with the same attitude in Quebec I don't think they will win there either.

Sorry but when you try and tell a provincial labor board that they have no jurisdiction and the US NLRB has the right to dictate labor policy in Canada, they get ticked quick.

 

[Wetcoaster]

Neither Quebec nor B.C. allow the use of replacement workers during strikes or lockouts, but that's only when the workers being replaced belong to certified unions.

Does anyone know the legal basis by which that article makes that statement ? It doesn't jive with the "voluntary recognition" clause, does it ?

There is no legal basis.

 

[Wetcoaster]

BTW your title is incorrect. The NHLPA is already a union (in fact a "trade union") as defined under the BC Labour Relations Code. They already have status as a trade union.

All the union is seeking is formal certification as the bargaining agent.

The article quoted seems to be following along the same mistaken path. If the media are unable to understand this very basic concept it is little wonder they have problems with anything that is slightly complex dealing with labour law and they get it wrong.

 

[Mess]

BTW your title is incorrect. The NHLPA is already a union (in fact a "trade union") as defined under the BC Labour Relations Code. They already have status as a trade union.

All the union is seeking is formal certification as the bargaining agent.

The article quoted seems to be following along the same mistaken path. If the media are unable to understand this very basic concept it is little wonder they have problems with anything that is slightly complex dealing with labour law and they get it wrong.

Okay fair enough .. but that doesn't fit in the title

BTW .. Bettman commented on today's BC LRB ruling saying

" I fought the Law and the Law one "

I think the filing of the NLRB complaint by the NHL in the US didn't win them any support in this hearing .. IMO

During a hearing Tuesday in Vancouver, Peter Gall, the lawyer representing the NHL and the owners of the Vancouver Canucks, argued the NHLPA's application for union certification should be adjourned until an unfair labour practice complaint is heard by the National Labour Relations Board in the United States.

Nassan dismissed that argument

 

[Wetcoaster]

Okay fair enough .. but that doesn't fit in the title

BTW .. Bettman commented on today's BC LRB ruling saying

" I fought the Law and the Law one "

I think the filing of the NLRB complaint by the NHL in he US didn't win them any support in this hearing ..

You can pretty much bank on the fact that they treated the BC LRB with scant respect did them no favours.

 

[Mess]

You can pretty much bank on the fact that they treated the BC LRB with scant respect did them no favours.

I guess it doesn't matter how many PRO BIG BUSINESS judges Bush appoints to the NLRB in the US .. The Province of BC and its LRB will play a part in the outcome of this dispute.

 

[djhn579]

I guess it doesn't matter how many PRO BIG BUSINESS judges Bush appoints to the NLRB in the US .. The Province of BC and its LRB will play a part in the outcome of this dispute.

Since the NHL already said they won't use replacement players, the province of bc and its lrb will play only a very small role in the outcome of this dispute...

 

[Wetcoaster]

I guess it doesn't matter how many PRO BIG BUSINESS judges Bush appoints to the NLRB in the US .. The Province of BC and its LRB will play a part in the outcome of this dispute.

According to most US labour law experts there has not been much change in the NLRA decisions from the Clinton years. It does not seem to be high on Baby Bush's agenda. I think he may be occupied with other things.

The percentage of unsuccessful imapsse declarations has been veitually unchanged over the past decade according to the reports I have seen.

Also remember that is constrained by precedent and is under the supervison of the Us Federal Courts, they cannot simply ignore the law.

 

[Jarqui]

Since the NHL already said they won't use replacement players, the province of bc and its lrb will play only a very small role in the outcome of this dispute...

I think the media is missing the boat on this story. I feel that there is more being attempted by the NHLPA here than merely shoring up access to the "no replacement workers" legislation that probably didn't need much shoring up given their CBA history.

 

[Wetcoaster]

Since the NHL already said they won't use replacement players, the province of bc and its lrb will play only a very small role in the outcome of this dispute...

Like the media, you are assuming that this has something to do with replacement players. The NHLPA has never said that it does.

Besides the NHLPA was already covered off for replacement players under the "voluntary recognition" proviso vis a vis replacemnt players. Formal certification of the NHLPA as a bargaining agent was not legally necessary.

If a group of employees wants to be represented by a union, the Code provides the means for that union to be legally recognized as the exclusive bargaining agent for those employees. This recognition is called “certification†and carries with it certain rights and obligations. The union acquires the right to bargain with the employer on behalf of the employees it represents (the bargaining unit) and, on their behalf, to enter into a collective agreement setting out the terms and conditions of their employment. In return for that right, the union has the duty to represent all of the employees in the bargaining unit in a manner which is not arbitrary, discriminatory or in bad faith, whether or not those employees are members of the union.

Even where a union has not sought certification under the Code, an employer may agree to acknowledge the union as bargaining agent for the employees and to conclude a collective agreement with the union. This is called voluntary recognition. In such cases the union will normally have the same rights and be subject to the same obligations under the Code as a certified union. The Board, however, must be satisfied that the voluntary recognition has been approved by the employees affected.

http://www.lrb.bc.ca/codeguide/chapter1.htm

 

[Wetcoaster]

I think the media is missing the boat on this story. I feel that there is more being attempted by the NHLPA here than merely shoring up access to the "no replacement workers" legislation that probably didn't need much shoring up given their CBA history.

That has been my opinion from the get go on this application. It may be classic misdirection on the part of the NHLPA. "Watch my right hand..."

 

[djhn579]

Like the media, you are assuming that this has something to do with replacement players. The NHLPA has never said that it does.

Besides the NHLPA was already covered off for replacement players under the "voluntary recognition" proviso vis a vis replacemnt players. Formal certification of the NHLPA as a bargaining agent was not legally necessary.


http://www.lrb.bc.ca/codeguide/chapter1.htm

I was considering that the NHLPA could be looking for special rights that being a certified union in bc could give them and trying to extend that to the rest of the NHL. Maybe there is something preventing the capping of salaries or trading players without the players consent.

But, if the NHLPA does try for recognition for this reason, it will turn in to a legal mess for both sides, with the upper hand being held by the US NLRB since the NHL is based in the US and both the NHL and NHLPA have stated that the US NLRB has jurisdiction over this labor dispute (read this long ago...). When a CBA is finally agreed to, I wouldn't be suprised to see language in it formally giving jurisdiction to the us NLRB, but that is for the lawyers to work out.

 

[Mess]

According to most US labour law experts there has not been much change in the NLRA decisions from the Clinton years. It does not seem to be high on Baby Bush's agenda. I think he may be occupied with other things.

The percentage of unsuccessful imapsse declarations has been veitually unchanged over the past decade according to the reports I have seen.

Also remember that is constrained by precedent and is under the supervison of the Us Federal Courts, they cannot simply ignore the law.

Well with that being said then it appears that the NHL is running low on Strong Arm negotiating tactics with IMPASSE and Replacement players in question, and with time ticking closer to D-day for unsigned draft picks and RFA qualifying offers..

One could conclude that the NHLPA leverage could not be higher then it is right now over the next month to get a CBA negotiated in "GOOD FAITH" ..

 

[Weary]

Like the media, you are assuming that this has something to do with replacement players. The NHLPA has never said that it does.

From
Board considers NHLPA union bid:

Union lawyer Bruce Laughton responded on behalf of the NHLPA that is seeking certification to block the league's threat to potentially use replacement players in British Columbia and Quebec next season.​

 

[Wetcoaster]

I was considering that the NHLPA could be looking for special rights that being a certified union in bc could give them and trying to extend that to the rest of the NHL. Maybe there is something preventing the capping of salaries or trading players without the players consent.

But, if the NHLPA does try for recognition for this reason, it will turn in to a legal mess for both sides, with the upper hand being held by the US NLRB since the NHL is based in the US and both the NHL and NHLPA have stated that the US NLRB has jurisdiction over this labor dispute (read this long ago...). When a CBA is finally agreed to, I wouldn't be suprised to see language in it formally giving jurisdiction to the us NLRB, but that is for the lawyers to work out.

No, the BC LRB has no such powers. The LRB does not mandate what is negotiated in a CBA. The Board simply enforces the laws regarding the form of bargaining not the content.

What may be useful procedurally are the position of a Special Mediator with broad powers or perhaps the wider power to order dislosure of documents.

Summons and discovery of documents
125 On the recommendation of an officer appointed under section 14, 87 or 104 (4) (c), or on its own motion, the board may summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce the documents and things the officer or the board considers necessary to a full investigation and consideration of matters within the board's jurisdiction in the same manner as a court of record in civil cases.

The NLRA only has jurisdiction over the US teams- it has no jurisdiction over the Canadian-based teams.

 

[Wetcoaster]

From
Board considers NHLPA union bid:

Union lawyer Bruce Laughton responded on behalf of the NHLPA that is seeking certification to block the league's threat to potentially use replacement players in British Columbia and Quebec next season.​

My point exactly - the media is saying that - not the NHLPA.

 

[Oiler_Fan]

What may be useful procedurally are the position of a Special Mediator with broad powers or perhaps the wider power to order dislosure of documents.

What I can see here is a political game then. It doesn't make any sense that this would extend to teams outside of BC, but basically the BC LRB could get the Canucks to disclose financial information.

Since Canuck representatives have admitted that the Canucks have been fairly profitable and if Forbes is out to lunch on thier estimates (which I'm sure they are by a lot), then the Canucks financial information made public or common knowledge isn't going to do much to support the NHL's argument crying poor.

Since I don't think the fans will make much of this, my guess is that this is opening an option for Goodenow to add support to an argument to his players that the owners are lying about the scope of the financial problems. It's also MAYBE something to be used in an argument with the NRLB, though I suspect it won't be largely useful there.

So being naively speculative, that might suggest he's looking for something to bolster his position and that might imply that his position amongst his membership needs bolstering. If so, nothing to really see here... next...

 

[PecaFan]

You can pretty much bank on the fact that they treated the BC LRB with scant respect did them no favours.

So, they act unprofessionally and are biased against you if you don't kiss their ass? Doesn't surprise me.

 

[vanlady]

So, they act unprofessionally and are biased against you if you don't kiss their ass? Doesn't surprise me.

LOL that would be like telling the Canadian Supreme Court that they couldn't decide your case cause you like the laws in the US better. Sorry but you would have to be stupid to walk into any formal legal proceeding in this country and say that a US body has jurisdiction.

Now here is the twist, will the NLRB have to chuck to unfair labor practices complaint because they do not have jurisdiction? For them to decide that a union certification in another country is unfair labor practice, violates at least on international treaty I can think of.

 

[Jarqui]

You can pretty much bank on the fact that they treated the BC LRB with scant respect did them no favours.

I don't see how asking the BC LRB about an outstanding claim and the potential outcome of that claim with the NLRB is showing "scant respect". It is for the BC LRB to make their decisions based upon the information and evidence brought before it. It is not up to the BC LRB to rummage around looking for claims or other issues with other LRBs etc and perform the task of gathering evidence. If there is an action out there that could affect the outcome of this decision, it is the duty of the NHL to bring that to the attention of the BC LRB and reasonably question the best way for this process to proceed. The NHL merely asked the board to consider what was going on. I don't see doing that as any big deal whatsoever. I sincerely doubt that the BC LRB would either. It's all part of "the game".

If anyone got "scant respect" with this application, it was the NLRB and their decades of history with this CBA.

I think all labor boards like everyone else, will ultimately see this for what it is. If all 30 teams played in the US, this sort of thing couldn't take place. Goodenow is losing. His best hope for some time has been for the NHL to step into a legal sink hole to help give him some leverage over his circumstance. It appears that the NHL have been well advised legally and have not done that nor do they seem headed for that at this point in time. Therefore, in my humble opinion, Goodenow appears to be trying to "create" one. He seems to be headed to test the poorly charted chink in the legal system between the two countries and international labor relations law. If he can snag the CBA up in a legal mess there, he might be able to gain some leverage.

I doubt he'll have success because the NHL could stretch out the legal battle for ages in Supreme Courts and Courts of Appeal. The union will very likely break before they get ever get a final outcome. The NHL don't even have to win this argument - just drag it out while the NHL arenas make a few bucks with the AHL playing for the Stanley Cup in their buildings.

I don’t see what Goodenow is doing as "wrong". He is trying to protect the best interests of his players though some may question if he is going about it in the best possible way. The same applies in every sense to the NHL owners. I suspect all labor boards will see it the same way. It is nothing that will "offend" any of them too much.

 

[Patman]

Well with that being said then it appears that the NHL is running low on Strong Arm negotiating tactics with IMPASSE and Replacement players in question, and with time ticking closer to D-day for unsigned draft picks and RFA qualifying offers..

One could conclude that the NHLPA leverage could not be higher then it is right now over the next month to get a CBA negotiated in "GOOD FAITH" ..

You mean this isn't a strong arm tactic? The implication here is that the NHLPA can now threaten to invoke BC and PQ laws to enforce rules on one team that won't be held for all teams... of course this non-sensical. This very much a strong arm leverage tool. If the PA thinks it can leverage better by either using or threatening to use BC and PQ law to force different rules on Vancouver or Montreal they will. Many people whined about Jacobs pissing off some players... I can't imagine this event doesn't work in reverse and creates further animosity.

Good faith went out the window long ago... this is still a game of who can stand over the other's corpse.

 

[Jarqui]

What I can see here is a political game then. It doesn't make any sense that this would extend to teams outside of BC, but basically the BC LRB could get the Canucks to disclose financial information.

On what basis ? This is a hearing on NHLPA certification. It is an issue under the BC LRA. Financial issues are only likely to arise if the Canucks close their doors on their NHL hockey operation.

Since Canuck representatives have admitted that the Canucks have been fairly profitable and if Forbes is out to lunch on thier estimates (which I'm sure they are by a lot), then the Canucks financial information made public or common knowledge isn't going to do much to support the NHL's argument crying poor.

One has to remember to distinguish between Orca Bay and their hockey team. Orca Bay S&E could very well make money while their hockey team loses money.

Since I don't think the fans will make much of this, my guess is that this is opening an option for Goodenow to add support to an argument to his players that the owners are lying about the scope of the financial problems.

And the NHL calls to the stand the independent auditors of the 26 teams who were fully audited and the auditors who audited the numbers provided to the league URO which were obtained from the four other teams who could not be fully audited due to their financial condition. Arthur Levitt then presents his findings on checking and reviewing those audits. Who does the NHLPA call as a witness ? Forbes who hasn't looked at the books and reported the Canucks have lost $46 mil since '99 ? That game is over before it can even get started.

 

[me2]

What I can see here is a political game then. It doesn't make any sense that this would extend to teams outside of BC, but basically the BC LRB could get the Canucks to disclose financial information.

Since Canuck representatives have admitted that the Canucks have been fairly profitable and if Forbes is out to lunch on thier estimates (which I'm sure they are by a lot), then the Canucks financial information made public or common knowledge isn't going to do much to support the NHL's argument crying poor.

Since I don't think the fans will make much of this, my guess is that this is opening an option for Goodenow to add support to an argument to his players that the owners are lying about the scope of the financial problems. It's also MAYBE something to be used in an argument with the NRLB, though I suspect it won't be largely useful there.

So being naively speculative, that might suggest he's looking for something to bolster his position and that might imply that his position amongst his membership needs bolstering. If so, nothing to really see here... next...

I doubt it. This isn't just the Canucks dealing with a local union, this is multi-country CBA.

Why would the BC LB want to get involved in the CBA negotiations? The can't force the US/non-BC teams to do anything. So what could they possibly do, force a negotiated settlement on the Canucks that is unrelated to the NHL-NHLPA CBA? If they forced the Canucks to sign a different CBA than the rest of the NHL then Canucks would most like not be able to play in the NHL, so they'd probably leave BC.

Doesn't make much sense for the the BC LB to do that, so they will likely do nothing except rule on violations like replacements and nothing much else.

The NHLPA is just going through the motions with the certification and the NHL is going through the motions with the objections.