BC LRB allows the NHLPA to continue towards Union Status

[blamebettman*]

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...

and you believe the NHL? they have zero credibility.

I bet you think OJ is innocent too

 

[djhn579]

and you believe the NHL? they have zero credibility.

I bet you think OJ is innocent too

OJ is innocent... So, what's your point?


The NHL has far more credibility in these CBA negotiations than the "we will never accept a cap, well maybe a cap but no linkage to revenues, er, I mean we will accept a cap and linkage but only with an upper limit of $50M, um... I mean... NHLPA"

 

[Wetcoaster]

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.

The heart of the NHL position was you have no right to be involved with this - leave it to the NLRB.

The BC LRB gave that argument pretty short shrift - as it should.

What legal battle?

Finality of decisions and orders

138 A decision or order of the board under this Code, a collective agreement or the regulations on a matter in respect of which the board has jurisdiction is final and conclusive and is not open to question or review in a court on any grounds.

 

[Sammy*]

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.

.

What in gods name are you talking about? It happens every day in the courtrooms of this Country that lawyers say a particular court they are in does not have jurisdiction.
What exactly are you suggesting anyways? That lawyers shouldnt argue that a US court does have jurisdiction & a Canadian Court doesnt, even if there is no juridical basis for the Canadian court to have jurisdiction.
My god , I hope you arnt a lawyer & if you are, I really hope you are not practising.

 

[vanlady]

What in gods name are you talking about? It happens every day in the courtrooms of this Country that lawyers say a particular court they are in does not have jurisdiction.
What exactly are you suggesting anyways? That lawyers shouldnt argue that a US court does have jurisdiction & a Canadian Court doesnt, even if there is no juridical basis for the Canadian court to have jurisdiction.
My god , I hope you arnt a lawyer & if you are, I really hope you are not practising.

You can't argue labor jurisdiction accross borders. I suggest you read some of the applicable International treaties. Just as the BCLRB has no jurisdiction in the US, the NLRB had absolutely no juridiction in Canada. Why do you think the US Companies that employ workers in Canada have to negotiate contracts with there Canadian locals. To walk into a labor board in this country and say that they have no right to rule on a contract dispute between an employer in this country would open up a whole can of worms. What is to stop Ford from completely ignoring the Ontario Labor Board because they think they will get a more favorable decision in the US. The are hundreds of years of rulings about this. The US NLRB has absolutely no juridiction on this side of the boarder and any decision that they come to could be challenged on this side of the boarder. I suggest you look up a few cases on juridiction because you have no clue as to what you are talking about. b

 

[BLONG7]

I think if these guys want to be a real union, then let them be a real union, where all the workers rights are considered equal and not the boys at the top calling the shots...where all employees wages are negotiated by the union and not individual agents...and where all should make the same money, like guys in a real union... 40M Cap, 23 guys on a team, 1.6M each...end of story... The teams and league succeed, then cut them all profit sharing...That's if they want to become a real union...

 

[Wetcoaster]

I think if these guys want to be a real union, then let them be a real union, where all the workers rights are considered equal and not the boys at the top calling the shots...where all employees wages are negotiated by the union and not individual agents...and where all should make the same money, like guys in a real union... 40M Cap, 23 guys on a team, 1.6M each...end of story... The teams and league succeed, then cut them all profit sharing...That's if they want to become a real union...

They are a union as defined under the various governing labour laws.

The name used is immaterial. Whether it is called an association, union, labour group, trade union, association of employees, labor organization or whatever, it is the functional definition which applies. It is a union if the labour relations statute treats it as such regardless of the term applied.

The NHLPA is a union as defined under the various labour relations statutes.

In BC the NHLPA is defined as a "trade union":

"trade union" means a local or Provincial organization or association of employees, or a local or Provincial branch of a national or international organization or association of employees in British Columbia, that has as one of its purposes the regulation in British Columbia of relations between employers and employees through collective bargaining, and includes an association or council of trade unions, but not an organization or association of employees that is dominated or influenced by an employer;

In Alberta:

"trade union" means an organization of employees that has a written constitution, rules or bylaws and has as one of its objects the regulation of relations between employers and employees;

In Ontario:

“trade union†means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

In Quebec:

“association of employeesâ€;
(a) “association of employeesâ€: a group of employees constituted as a professional syndicate, union, brotherhood or otherwise, having as its objects the study, safeguarding and development of the economic, social and educational interests of its members and particularly the negotiation and application of collective agreements;

Under the US NLRA a union is referred to as a "labor organization":

(5) The term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

Under any of those provisions the NHLPA is a union and it is treated as such.

 

[Wetcoaster]

What in gods name are you talking about? It happens every day in the courtrooms of this Country that lawyers say a particular court they are in does not have jurisdiction.
What exactly are you suggesting anyways? That lawyers shouldnt argue that a US court does have jurisdiction & a Canadian Court doesnt, even if there is no juridical basis for the Canadian court to have jurisdiction.
My god , I hope you arnt a lawyer & if you are, I really hope you are not practising.

I am a lawyer and the NHL argument had "no juridicial basis". The argument was dismissed out of hand by the BC LRB as it should have been. It was ridiculous position and quite offensive.

The law in this area is clear - in Canada the various provincial labour relations boards have jurisdiction over this matter. In the US because of their constituional system the federal government has authority but only over US based teams. That was illustrated in the 1994 MLB dispute when Queec and Ontario labour law was applied to prevent the Expos and Blue Jays from using replacement palyers in those provinces.

 

[Mess]

You can't argue labor jurisdiction accross borders. I suggest you read some of the applicable International treaties. Just as the BCLRB has no jurisdiction in the US, the NLRB had absolutely no juridiction in Canada. Why do you think the US Companies that employ workers in Canada have to negotiate contracts with there Canadian locals. To walk into a labor board in this country and say that they have no right to rule on a contract dispute between an employer in this country would open up a whole can of worms. What is to stop Ford from completely ignoring the Ontario Labor Board because they think they will get a more favorable decision in the US. The are hundreds of years of rulings about this. The US NLRB has absolutely no juridiction on this side of the boarder and any decision that they come to could be challenged on this side of the boarder. I suggest you look up a few cases on juridiction because you have no clue as to what you are talking about. b

I agree ...

I guess Canadians should get to vote in the US elections from now on .. After all if their laws are going to supersedes Canada's own and thus to avoid a hostile take over and Invasion looking for WMD's , lets decide if our Provinces turn blue or red on US election night.

 

[Oiler_Fan]

I doubt it.

I don’t think what I suggest is the case. I was just following a speculative path at what difference the "Special Mediator" Wetcoaster refers to could make to the process. There's probably a lot of other hypothetical scenarios, but I can't see one that would make much difference in the whole thing other then one that gives Goodenow something to influence his constituents.

I was then trying to have some fun with it trying to spin it into a suggestion that maybe Goodenow’s got some problems where he needs some more influence with his constituents

 

[Mess]

That was illustrated in the 1994 MLB dispute when Queec and Ontario labour law was applied to prevent the Expos and Blue Jays from using replacement palyers in those provinces.

What has happened in Ontario since the Baseball strike if you know ,that would make using Replacement Hockey Players any easier an option then Replacement Baseball players ..

The Ontario LRB ruled against it before so has new legislation be created that has changed this now??

 

[Sammy*]

You can't argue labor jurisdiction accross borders. I suggest you read some of the applicable International treaties. Just as the BCLRB has no jurisdiction in the US, the NLRB had absolutely no juridiction in Canada. Why do you think the US Companies that employ workers in Canada have to negotiate contracts with there Canadian locals. To walk into a labor board in this country and say that they have no right to rule on a contract dispute between an employer in this country would open up a whole can of worms. What is to stop Ford from completely ignoring the Ontario Labor Board because they think they will get a more favorable decision in the US. The are hundreds of years of rulings about this. The US NLRB has absolutely no juridiction on this side of the boarder and any decision that they come to could be challenged on this side of the boarder. I suggest you look up a few cases on juridiction because you have no clue as to what you are talking about. b

While I have no clue about labor law, I do about law, & let me tell you, jurisdiction is argued all the time. I highly doubt labor law is immune from it. Furthurmore , I suspect the owners counsel is a hell of alot more knowledgable & competent than some wannabe or never were lawyers, & wouldnt be putting forth an argument that had zero chance of success.
Nice try though.

 

[Sammy*]

I agree ...

I guess Canadians should get to vote in the US elections from now on .. After all if their laws are going to supersedes Canada's own and thus to avoid a hostile take over and Invasion looking for WMD's , lets decide if our Provinces turn blue or red on US election night.

Wonderful analogy.
From now on, I guess the courts in Canada & the States should simply not hear any jurisdictional matters, because as we all know,its laughable that that the the issue at hand could ever be improperly brought cause of jurisdiction.

 

[Wetcoaster]

What has happened in Ontario since the Baseball strike if you know ,that would make using Replacement Hockey Players any easier an option then Replacement Baseball players ..

The Ontario LRB ruled against it before so has new legislation be created that has changed this now??

The Mike Harris government removed the prohibition against replacement workers put in by the Rae government after the 1994 MLB dispute.

There have been reports that the current Ontario Liberal government is planning to re-impose the ban on replacement workers shortly. if that is the case then it would affect Ottawa and Toronto.

 

[Wetcoaster]

While I have no clue about labor law, I do about law, & let me tell you, jurisdiction is argued all the time. I highly doubt labor law is immune from it. Furthurmore , I suspect the owners counsel is a hell of alot more knowledgable & competent than some wannabe or never were lawyers, & wouldnt be putting forth an argument that had zero chance of success.
Nice try though.

Yes jurisdiction is often an issue, when it is arguable.

It is settled law that the NLRB has jurisdiction over US based teams and the provincial LRB's have juridiction over the Canadian based teams.

 

[Jarqui]

Finality of decisions and orders

138 A decision or order of the board under this Code, a collective agreement or the regulations on a matter in respect of which the board has jurisdiction is final and conclusive and is not open to question or review in a court on any grounds.

What legal battle?

Can you name a judicial process in Canada that doesn’t have an appeals process for checks and balances ? Or is the BC LRA the constitution and supreme statute of a labour sympathetic socialist satrapy in British Columbia.?

From the Guide to BC LRA
http://www.lrb.bc.ca/codeguide/guide.pdf
Jurisdiction (of BC LRB)
… it shows that the Legislature has given the Board the power to decide the vast majority of matters that can arise in labour relations. The courts retain their jurisdiction to review decisions of the Board under the Judicial Review Procedure Act. Questions about administrative fairness of the Board can be brought to the attention of the Office of the Ombudsman. In most cases all avenues of internal appeal should be exhausted prior to an issue going to the courts or the Office of the Ombudsman.

Here’s one case as an example of this process
Link to case where BC LRB decision is appealed to BC LRB and then appealed to Judicial Review in the BC Supreme Court and then appealed to the BC Court of Appeal

Fun stuff !!

Further to this from the BC LRA (not every option included) :
Appeal jurisdiction of Labour Relations Board
99 (1) On application by a party affected by the decision or award of an arbitration board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that
(a) a party to the arbitration has been or is likely to be denied a fair hearing, or
(b) the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations.
(2) An application to the board under subsection (1) must be made in accordance with the regulations.
Appeal jurisdiction of Court of Appeal
100 On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law not included in section 99 (1).

Jurisdiction of court
137 (2) This Code must not be construed to restrict or limit the jurisdiction of a court, or to deprive a court of jurisdiction to entertain a proceeding and make an order the court may make in the proper exercise of its jurisdiction if a wrongful act or omission in respect of which a proceeding is commenced causes immediate danger of serious injury to an individual or causes actual obstruction or physical damage to property.

Filing order in Supreme Court
135 (1) The board must on request by any party or may on its own motion file in a Supreme Court registry at any time a copy of a decision or order made by the board under this Code, a collective agreement or the regulations.
(2) The decision or order must be filed as if it were an order of the court, and on being filed it is deemed for all purposes except appeal from it to be an order of the Supreme Court and enforceable as such.

And then of course:
Court of Appeal
General Info
The British Columbia Court of Appeal is the highest court in the province and hears appeals from the British Columbia Supreme Court and some criminal appeals from the Provincial Court, as well as appeals from administrative tribunals. Appeals from the Court of Appeal are heard by the Supreme Court of Canada.

In summary, you have as some options (not all linear in steps) below:
Appeal of arbitrator/mediator level decision to BC LRB/arbitration board or through the courts
Appeal of BC LRB decision to BC LRB
Appeal to Ombudsman on BC LRB decision
Request Judicial Review in BC Supreme Court of the BC LRB decision
Ultimately appeal to BC Court of Appeal on BC LRB decision
Appeal/request to Minister of Labour on some issues

And when you’ve got through that list on an issue (not all applicable to all circumstances), the NHL may well come back with some of their own claims asking for other decisions related to the NHLPA CBA/certification/whatever and go through all of the above appeals on those jamming or dragging out the decision process.

The NHL could also
Ask the BC provincial government or the federal government to step in
Bring other statues to bear outside of the BC LRB jurisdiction that may conflict or prevail
Bring claims to the NLRB which could stalemate the process with conflicting decisions
Take an issue to the Supreme Court of Canada

Or they can sell the assets of the -$46+ mil Canucks and get out of the province which shuts the entire mess in BC down and let the AHL play in their buildings until the rest of the mess sorts itself out or the union is busted.

Having said that, I’m sure that I missed a few options. But the fact is, the NHL do have appeal options on decisions made within the BC LRA. All the NHL needs is a good labour relations lawyer to bring them.

 

[alecfromtherock]

Why should the US NLRB care about Canadian provinces’ LRB’s?

The 24 US NHL teams can proceed with or without the 6 Canadian teams if replacement players are permitted by the NLRB.

Wetcoaster: 1) If no Canadian team can ice replacements would there be a possible situation whereas Canadians would not be permitted to play for the US NHL teams?

1A) For instance a NCAA graduate who is born in Canada is asked to be a replacement player by say the Rangers, is there any Canadian or provincial laws that would prevent this from happening?

2) Even if Canadian players are not permitted to play as US NHL hockey replacements would the same apply to Russians and Europeans?

 

[Wetcoaster]

Can you name a judicial process in Canada that doesn’t have an appeals process for checks and balances ? Or is the BC LRA the constitution and supreme statute of a labour sympathetic socialist satrapy in British Columbia.?

From the Guide to BC LRA
http://www.lrb.bc.ca/codeguide/guide.pdf
Jurisdiction (of BC LRB)
… it shows that the Legislature has given the Board the power to decide the vast majority of matters that can arise in labour relations. The courts retain their jurisdiction to review decisions of the Board under the Judicial Review Procedure Act. Questions about administrative fairness of the Board can be brought to the attention of the Office of the Ombudsman. In most cases all avenues of internal appeal should be exhausted prior to an issue going to the courts or the Office of the Ombudsman.

Here’s one case as an example of this process
Link to case where BC LRB decision is appealed to BC LRB and then appealed to Judicial Review in the BC Supreme Court and then appealed to the BC Court of Appeal

Fun stuff !!

Further to this from the BC LRA (not every option included) :
Appeal jurisdiction of Labour Relations Board
99 (1) On application by a party affected by the decision or award of an arbitration board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that
(a) a party to the arbitration has been or is likely to be denied a fair hearing, or
(b) the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations.
(2) An application to the board under subsection (1) must be made in accordance with the regulations.
Appeal jurisdiction of Court of Appeal
100 On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law not included in section 99 (1).

Jurisdiction of court
137 (2) This Code must not be construed to restrict or limit the jurisdiction of a court, or to deprive a court of jurisdiction to entertain a proceeding and make an order the court may make in the proper exercise of its jurisdiction if a wrongful act or omission in respect of which a proceeding is commenced causes immediate danger of serious injury to an individual or causes actual obstruction or physical damage to property.

Filing order in Supreme Court
135 (1) The board must on request by any party or may on its own motion file in a Supreme Court registry at any time a copy of a decision or order made by the board under this Code, a collective agreement or the regulations.
(2) The decision or order must be filed as if it were an order of the court, and on being filed it is deemed for all purposes except appeal from it to be an order of the Supreme Court and enforceable as such.

And then of course:
Court of Appeal
General Info
The British Columbia Court of Appeal is the highest court in the province and hears appeals from the British Columbia Supreme Court and some criminal appeals from the Provincial Court, as well as appeals from administrative tribunals. Appeals from the Court of Appeal are heard by the Supreme Court of Canada.

In summary, you have as some options (not all linear in steps) below:
Appeal of arbitrator/mediator level decision to BC LRB/arbitration board or through the courts
Appeal of BC LRB decision to BC LRB
Appeal to Ombudsman on BC LRB decision
Request Judicial Review in BC Supreme Court of the BC LRB decision
Ultimately appeal to BC Court of Appeal on BC LRB decision
Appeal/request to Minister of Labour on some issues

And when you’ve got through that list on an issue (not all applicable to all circumstances), the NHL may well come back with some of their own claims asking for other decisions related to the NHLPA CBA/certification/whatever and go through all of the above appeals on those jamming or dragging out the decision process.

The NHL could also
Ask the BC provincial government or the federal government to step in
Bring other statues to bear outside of the BC LRB jurisdiction that may conflict or prevail
Bring claims to the NLRB which could stalemate the process with conflicting decisions
Take an issue to the Supreme Court of Canada

Or they can sell the assets of the -$46+ mil Canucks and get out of the province which shuts the entire mess in BC down and let the AHL play in their buildings until the rest of the mess sorts itself out or the union is busted.

Having said that, I’m sure that I missed a few options. But the fact is, the NHL do have appeal options on decisions made within the BC LRA. All the NHL needs is a good labour relations lawyer to bring them.

The BC LRA and JRPA provide very limited court jurisidiction and certainly not over the matter of juridiction and certification.

 

[Wetcoaster]

Why should the US NLRB care about Canadian provinces’ LRB’s?

The 24 US NHL teams can proceed with or without the 6 Canadian teams if replacement players are permitted by the NLRB.

Wetcoaster: 1) If no Canadian team can ice replacements would there be a possible situation whereas Canadians would not be permitted to play for the US NHL teams?

1A) For instance a NCAA graduate who is born in Canada is asked to be a replacement player by say the Rangers, is there any Canadian or provincial laws that would prevent this from happening?

2) Even if Canadian players are not permitted to play as US NHL hockey replacements would the same apply to Russians and Europeans?

Under US immigration law if there is a labour dispute in progress then Canadian (or any other foreign national) player cannot be issued a work visa unless they are US legal permanent residents.

 

[Donnie D]

My reading is entirely different. What they said was they will hear the petition by the players association. Not that they agreed with the players association, but that they would listen to the arguements.

Not shocking, generally one side would have to be out in left field before a body would just dismiss the claim without a formal hearing.

I don't think this does anything but get the players association before the board. Both sides will present and then there will be a decision.

 

[Jarqui]

The BC LRA and JRPA provide very limited court jurisidiction and certainly not over the matter of juridiction and certification.

Judicial Review may review ANY decision of the BC LRB including those on certification.

If the boundaries are in question, like a union sitting on the border of an Indian reserve, it becomes a constitutional matter outside of the BC LRB. If the business is on the edge of definition in the Canada Labour Code, for instance, and both the BC LRB and the CIRB were to claim jurisdiction, as I understand it, the BC LRB is on an equal footing with the CIRB and therefore, the courts would have to decide the issue. The BC LRB have their jurisdiction defined for them. They don't define their jurisdiction by themselves when that jurisdiction hangs over the borders of their defined jurisdiction or other applicable Canadian laws without the ability of those who are affected by that decision having legal recourse in the courts.

Other notes :

With the relatively recent Supreme Court decision to use a "reasonable" standard in assessing arbitration decisions rather than the past "unreasonable" standard, a few experts think we'll see more arbitration decisions from the LRAs in Canada overturned in the courts.

Apparently, the Quebec labour relations laws do not subscribe to "voluntary recognition". Therefore, the application for certification in Quebec by the NHLPA was more "justified" to protect the NHLPA from replacement workers being used in Quebec.