Fan 590 Reports Players Are Angry

[Wetcoaster]

Sportsnet Legal analyst Rob Becker stated last week that the NHLPA is not a recognized or certified Union in the Provinces of BC and Quebec, hence, not subject to anti scab legislation.

Do you disagree with his view Wetcoaster?

Yes, he is clearly wrong. He is an American lawyer specializing in litigation but not even labour law and is used by Fox Sports as a commentator. He needs to actually read the Canadian law and the cases on this and not listen to PR people who make unfounded commentary.
http://msn.foxsports.com/story/3323892

I dealt with the exact parallel situation in the past as counsel and the union did not have to be certified since they were voluntarily recognized by the employer in a past CBA. It is an exception to the requirement for certification and it accords the union the same rights as if they have aplied for and been certified - black letter law.

 

[mooseOAK*]

What are you taking about? Of course the rank and fiel are bargaining - through their designated agent. There is a labour dispute in progress precipitated by the owners lockout and the employers cannot talk to the players about that or attempt any sort of influence on the process except through the recognized bargaining agent. Basic labour law.

The owners can talk to players but they cannot talk to them about the labour dispute and attempt to influnence them. The reports are that owners are telling players to put pressure on Goodenow to do a deal.

That is not allowed.

The 24% rollback offer came as a suprise to a lot of the union membership so they are not all intimately involved with the bargaining process. We don't even know if they have voting power on whether to accept an offer or not, not is what I guess.

All the players really need to do is to refuse to talk to the owners, the owners can't force them to say anything or even listen to what they have to say.

 

[Donnie D]

There is a labour dispute in progress precipitated by the owners lockout and the employers cannot talk to the players about that or attempt any sort of influence on the process except through the recognized bargaining agent. Basic labour law.

The owners can talk to players but they cannot talk to them about the labour dispute and attempt to influnence them. The reports are that owners are telling players to put pressure on Goodenow to do a deal.

That is not allowed.

My understanding of labor law is a bit different. I won't pretend to be a labor expert, however, I have been through several negotiations as a manager. We have been advised by our attorney, who does nothing but labor law, that management has every right under the collective bargaining laws in the US to inform union members on the owner's proposal and answer questions. They cannot, however, negotiate or ask the players to put pressure on the union. As long as they stick to a factual presentation, they are fine.

For example, if players ask how to decertify, management has every right to point them to the statute or the NLRB. They cannot ask the players to decertify. Management has the ability to mail a fact sheet showing the offer to players (and frankly that is the way I would go rather than talking, it is easier to defend in court), but they can talk to union members and describe their proposal.

No matter your thoughts on the dispute, there is no way that ownership is going to put themselves in the position of having an unfair labor complaint. The contacts surely have been very carefully scripted and the owners cautioned on what they can AND CANNOT say.

 

[The Maltais Falcon]

Do you honestly think Gary Bettman ever watched one NHL game before becoming NHL Commissioner? I sure as hell do not think so. Actually I bet he hasn't paid attention to one NHL game WHILE being the commissioner either.

Of course I think he has. Do you really believe what you just wrote? That Gary Bettman never watched a single NHL game before becoming commissioner and hasn't paid attention to one single game? That's completely daft.

Oh, and as far as Bettman making money elsewhere goes, his pre-NHL resume is largely irrelevant seeing as how he's been commissioner of the league for a dozen years now. He'll be able to find some cozy executive position in some corporation or a partner position at some law firm somewhere where he won't catch nearly as much grief as he does in this position and will make almost as much money.

 

[Old Hickory]

The average salary in baseball has gone DOWN since the last cba was signed

I am still reserving judgement on that. Salaries did go down last season but I am pretty sure they went back up this season and will continue to rise. (I could be wrong though, it is predicting the future) I think every pitcher who signed this offseason was overpaid.
That Minnesota pitchers arbitration decision was ridiculous and as good as Roger Clemens is, I don't think he is worth $18 million at 42 years old. That contract made him the highest paid player in MLB history.

 

[PeterSidorkiewicz]

Of course I think he has. Do you really believe what you just wrote? That Gary Bettman never watched a single NHL game before becoming commissioner and hasn't paid attention to one single game? That's completely daft.

I was joking about not paying attention to one single game as commissioner, as for not watching one game before becoming commissioner, I definitely believe that. It sure seems like it from the way hes run the NHL for 10 years. Even the fans realise how many idiotic moves hes decided to make regarding the game before the moves were even IMPLEMENTED. Why could all of us see it but not him? And as I said before, if Bettman really is just a figurehead for every move made for the owners then he really is insignificant and its the owners who should be ridiculed instead for their ludicrous decisions regarding the game. As Westcoaster put it, even people in the NBA said Bettman had no idea what the hell hockey was or how it worked.

 

[Habsaku]

I am still reserving judgement on that. Salaries did go down last season but I am pretty sure they went back up this season and will continue to rise. (I could be wrong though, it is predicting the future) I think every pitcher who signed this offseason was overpaid.
That Minnesota pitchers arbitration decision was ridiculous and as good as Roger Clemens is, I don't think he is worth $18 million at 42 years old. That contract made him the highest paid player in MLB history.

Alex Rodriguez?

 

[DownFromNJ]

Clemens didn't get awarded 18 million. He said 18 million would prevent him from retiring.

 

[PecaFan]

I do not think it slipped by - they simply gave up on an impasse declaration as viable option or strategy.

Gave up? :lol The NHL has stated from the *beginning* that impasse was not an option, and they were not looking to go that route.

Yes, he is clearly wrong. He is an American lawyer specializing in litigation but not even labour law and is used by Fox Sports as a commentator.

And yet both Quebec and BC government labour spokespersons have said the exact same thing.

Ever notice how if someone supports Wetcoaster's beliefs, they're an unassailable authority, but if they have the opposite legal opinion, they're an uninformed hack?

 

[Wetcoaster]

In the link I provided there's a quote from a former colleague (and current Proskauer attorney) saying Gary was a junior partner in his 20s. Gary's not the one claiming it. If you provide something that contradicts it, great. But don't expect me to trust your memory of something you said you read almost a dozen years ago.

The salary cap has served the NBA very well for almost two decades. The fact that the league (and players, for that matter) want to make changes in the cap's administration is natural. But the fact remains that both sides are committed to the cap.

All I can go by is what I read.

A junior partner in a large firm is little more than an associate - he would have had little management experience and input into the firm and certainly he was not a managing partner. There are any number of lawyers I know who rose faster and even became full partners in prestigious firms and one who became a judge within 6 years out of law school after making full partner in three years.

The salary cap has been a subject of debate and litigation within a few years of its inception. BTW according to David Stern the salary cap concept was not Gary Bettman's idea but rather Angelo Drossos (owner of the San Antonio Spurs) and Ed Garvey (Executive Director of the NFLPA).
http://sports.espn.go.com/nba/columns/story?columnist=stein_marc&id=1715470

The salary cap has not worked well for number of years. The union used antitrust law four years after the cap was imposed (the Brown v. NFL case now forecloses such action) to get what it wanted.

In 1991 the NBAPA brought action against the NBA for concealing revenues. The "DGR Settlement" signed in July 1992 is worth approximately $62 million to the players as the NBA admiited their wrongdoing.

The NBAPA shut down Stern's attempts to harden the cap, remove the Larry Bird and other exceptions and impose a 100% luxury tax in 1995 when the majority of the union led by Michael Jordan and Patrick Ewing (and their agent David Falk) threatened to decertify rather than sign a tentative deal worked out by new NBPA Executive Director, Simon Gourdine with David Stern. A decertification petition is actually filed with the National Labor Relations Board. The NBA backed down and Gourdine was replaced.

The players have made the cap work for them by keeping the NBA's feet to the fire through litigation and grivenances. The owners keep trying to harden the cap as is the goal in the upcoming negotations. Stern has stated that the cap is not working well for the owners and has not for a number of years.

 

[Wetcoaster]

Gave up? :lol The NHL has stated from the *beginning* that impasse was not an option, and they were not looking to go that route.

And yet both Quebec and BC government labour spokespersons have said the exact same thing.

Ever notice how if someone supports Wetcoaster's beliefs, they're an unassailable authority, but if they have the opposite legal opinion, they're an uninformed hack?

As late as last week Bill Daly in his press conference said that an impasse declaration was an option for the NHL.

Rob Becker is a New York lawyer employed by Fox Sports as a legal analyst and while he is a litigator he does not appear to have any background in labour law and certainly not Canadian labour law. He obvioulsy did not read the BC Labour Code nor check the case law but must have relied upon reports - a very dangerous practise for any lawyer. If he had checked he would not have offered the comment he did.

OTOH I have actually been counsel to a union which did not need to go through a certification vote in BC because they were exempt under the "voluntary recognition" exception. I never said he was "an uninformed hack" - I said he was clearly wrong. He may well be a very good lawyer - but he is wrong on that point.

The problem is that many spoke persons such as those at the labour boards are PR and communications types and not lawyers. They give answers that they think are correct but they do not have the expertise nor the knowledge to answer accurately where there is an exceptional situation as with this case. Labour law is extremely complex.

The NHLPA is not certified but it is still recognized as a "trade union" as defined under the BC Labour Code. Other provincial codes have similar defintions as does the US NLRA.

"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;

There have been opinions expressed that the the Habs and Canucks would have to hold a certification vote as a bargaining unit in order for the ban on replacement players to be in place.

That is quite clearly wrong on the the plain wording of the statute. Neither the Canucks nor the Habs need to be certified and replacement players would be banned because the BC Labour Code (as do the other provincial codes) has an exception known as “voluntary recognition†- see below.

In the 1994 MLB dispute the Expos could not use replacement players in Quebec and the law has not changed since then.

The provincial labour codes have an exception to the certification of a bargaining unit requirement where a union has previously negotiated a CBA on behalf of employees and they have operated under that CBA. Here is an explanation in plain English from the BC LRB website explaining the Labour Code exception:

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

The NHL has previously concluded several CBA's with the NHLPA as the bargaining agent for the Canucks players so they have voluntarily recognized the NHLPA and the NHLPA now has the same rights and obligations (including the replacement worker ban) as if they union was in fact certified. The current CBA in its preamble makes this crystal clear:

Preamble

This Collective Bargaining Agreement ("CBA" or "Agreement"), which is the product of bona fide, arm's length collective bargaining, is entered into effective the 13th day of January, 1995, by and between the National Hockey League, a joint venture organized as a not-for-profit unincorporated association ("NHL" or "League"), which is recognized as the sole and exclusive bargaining representative of the present and future Clubs of the NHL, and the National Hockey League Players' Association ("NHLPA" or "Association"), which is recognized as the sole and exclusive bargaining representative of present and future players in the NHL.

I do not think there could be any argument that the Canucks players did not approve the voluntary recognition in the past having been NHLPA members at the time of the CBA signings and concluding player contracts under its terms.

Several labour lawyers I have spoken with (management and union) claim that is sufficient to prevent replacement players being used in BC or Quebec. There is legislation pending in Ontario to re-enact the ban on replacement players that was in force in the past and prevented the Jays from playing scab ball in Ontario in 1994.

Ever notice how if someone supports Peca Fan's beliefs, they're an unassailable authority, but if they have the opposite legal opinion, they're an uninformed hack? The problem for Peca Fan is he is wrong on legal point - yet again.

Is it clear to you now?

 

[The Imp]

NHL has lifted the owners gag order and have requested they call their players to discuss what is going on from the owners end. Fan 590 just reported that the players have been calling Goodenow and are very upset at the prospect of a cancelled season. Now if this ESPN thing is true (that they reported the NHLPA is willing to discuss a cap with no linkage) then the end might be near for the lockout. I can't believe I actually have my hopes up again, but here goes.

Bettman clearly hasn't given up as asking the owners to start calling all of their players and pleading the owners case is a big move. If the Fan 590 and this ESPN report (which I can't verify yet) are indeed true, then there may be hope!

 

[Lanny MacDonald*]

Ever notice how if someone supports Wetcoaster's beliefs, they're an unassailable authority, but if they have the opposite legal opinion, they're an uninformed hack?

I've been thinking all through this thing that Wetcoast was the uninformed hack. The "cut and paste" queen has been long on verbage, but short on substance IMO. It was interesting for the first few posts, but then it became repetitive nonsense that became tiresome and conflictatory with what other legal experts, including ex-NLRB representatives were saying. At that point it was no longer worth getting into. When he can't even keep the Quebec recognition of the NHLPA straight it just becomes noise.

 

[Jarqui]

In the 1994 MLB dispute the Expos could not use replacement players in Quebec and the law has not changed since then.
...
Several labour lawyers I have spoken with (management and union) claim that is sufficient to prevent replacement players being used in BC or Quebec. There is legislation pending in Ontario to re-enact the ban on replacement players that was in force in the past and prevented the Jays from playing scab ball in Ontario in 1994.

Just a note: the Jays did obtain permission from MLB to play their games in Dunedin in '94. However, with hockey of course, we have work permit issues that complicate that option though I don't know if the BC or Quebec teams could opt to play in another province in Canada where replacements are "acceptable". (Maybe you do)

A question I have for you is why this dispute would not fall under the Canada Labour Code :
a) the problem has international characteristics
b) it involves more than two provinces (4)
c) the industry of hockey is of some "national importance"
(the above fitting criteria under that Code with point C in particular distinguishing it from baseball)

(downside to this notion is that it may not have been already declared by Parliament to fit under the act and may be required in order to fall under it)

Or could the NHL petition parliament to get coverage to simplify the dispute process : one in Canada and one in the US ?

 

[two out of three*]

All I got to say is.. That if the NHL has a season this year 417 TO MTL, will be considered a psychic on these boards.

Also, to the people talking about not caring about the NHL, or posting about baseball. One question? Why did you register at HF? To talk about other sports in the lounge? No.

And don't tell me you get your fix from other leagues. There is no league like the NHL.

 

[50 Mission Cap]

A question I have for you is why this dispute would not fall under the Canada Labour Code :
a) the problem has international characteristics
b) it involves more than two provinces (4)
c) the industry of hockey is of some "national importance"
(the above fitting criteria under that Code with point C in particular distinguishing it from baseball)

Unless you're prepared to rewrite the Canadian Constitution and alter sections 91 and 92, I'd suggest that it would be impossible for the federal government to do anything.

Labour laws are the responsibility of the provinces. Hence why you can't have replacement players (or scabs) in BC and Quebec. It used to be that way in Ontario as well but was changed by the Harris government.

Legally, the federal government can't do jack.

 

[Wetcoaster]

Just a note: the Jays did obtain permission from MLB to play their games in Dunedin in '94. However, with hockey of course, we have work permit issues that complicate that option though I don't know if the BC or Quebec teams could opt to play in another province in Canada where replacements are "acceptable". (Maybe you do)

A question I have for you is why this dispute would not fall under the Canada Labour Code :
a) the problem has international characteristics
b) it involves more than two provinces (4)
c) the industry of hockey is of some "national importance"
(the above fitting criteria under that Code with point C in particular distinguishing it from baseball)

(downside to this notion is that it may not have been already declared by Parliament to fit under the act and may be required in order to fall under it)

Or could the NHL petition parliament to get coverage to simplify the dispute process : one in Canada and one in the US ?

The legal answer is that under constitutional law it is a matter of provincial jurisdiction under property and civil rights in a province clause of the Canada Act 1867.

Federal jurisdiction over labour law is extremely limited and it must fall under one of the specified areas of federal jurisdiction in interprovincial and international industries and federal works, undertakings or businesses and their employees. According to the Constitution Act and its interpretations, the Parliament of Canada has jurisdiction for labour relations in a number of key industries:

-broadcasting (radio and television)
-chartered banks
-postal service
-airports and air transportation
-shipping and navigation (including loading and unloading of vessels)
-interprovincial or international transportation by road, railway, ferry or pipeline
telecommunications
-industries declared for the general advantage of Canada such as grain handling and uranium mining and processing
-business activities in the Yukon and Northwest Territories
-undertakings of First Nations on reserves
-certain crown corporations such as Atomic Energy of Canada Ltd, Devco, and the National Arts Centre :

NHL hockey would not meet the legal test under constitutional law of an industry declared to be for the general advanatage of Canada.

To bring the NHL under the Canada Labour Code it would require a constitutional amendment and no province would give up that authority.

 

[PecaFan]

Is it clear to you now?

Nope. Why can't you just admit what I'm willing to admit?

It's uncertain as to exactly whether the NHLPA is covered by these laws or not, and lawyers disagree on it. Some take one side, some take the other side. There is no definitive legal opinion here, yet you insist on making it look like there's a concensus.

You do the same thing with everything. Impasse isn't just difficult to achieve, it's an impossibility. De-certification would have no downside, it would be a slam dunk massive victory. Visa's and work permits would be unattainable.

 

[Wetcoaster]

I've been thinking all through this thing that Wetcoast was the uninformed hack. The "cut and paste" queen has been long on verbage, but short on substance IMO. It was interesting for the first few posts, but then it became repetitive nonsense that became tiresome and conflictatory with what other legal experts, including ex-NLRB representatives were saying. At that point it was no longer worth getting into. When he can't even keep the Quebec recognition of the NHLPA straight it just becomes noise.

Read the law. The voluntary recognition exception to the need for a union to be certified to be covered by the labour code brings in the ban on replacement woorkers in BC and Quebec.

The opinions were wrong because they ignored the excetion to the general rule.

I suggest you moderate your language.

 

[Wetcoaster]

Nope. Why can't you just admit what I'm willing to admit?

It's uncertain as to exactly whether the NHLPA is covered by these laws or not, and lawyers disagree on it. Some take one side, some take the other side. There is no definitive legal opinion here, yet you insist on making it look like there's a concensus.

You do the same thing with everything. Impasse isn't just difficult to achieve, it's an impossibility. De-certification would have no downside, it would be a slam dunk massive victory. Visa's and work permits would be unattainable.

You do not need a legal opinion when the law is clear as written. It is clear the voluntary recognition exception applies.

I have never said an impasse declaration would be impossible, I have said it would be extremely difficult to be upheld given the case law.

Visas and work permits in the NHL during a labour dispute are another issue. If there is a labour dispute in progress they cannot be issued. Period. No discretion. That is absolute

 

[Jarqui]

Unless you're prepared to rewrite the Canadian Constitution and alter sections 91 and 92, I'd suggest that it would be impossible for the federal government to do anything.

Labour laws are the responsibility of the provinces. Hence why you can't have replacement players (or scabs) in BC and Quebec. It used to be that way in Ontario as well but was changed by the Harris government.

Legally, the federal government can't do jack.

Why do they have a Canada Labor Code that claims to apply to:
- industries of an extra-provincial or international character, such as railways, bus operations, trucking, pipelines, ferries, tunnels, bridges, canals as well as shipping and related services (e.g., longshoring);
- air transport, aircraft and airports;
- telecommunications, such as radio and television broadcasting as well as telephone and cable systems;
- banks;
- works that have been declared by Parliament to be for the general advantage of Canada or of two or more provinces, such as grain elevators or uranium mining and processing; and
- certain federal Crown corporations.

The fact is, the Federal Government is involved in labour legislation and administration. It is not exclusively in the domain of the provinces.

It seems to me that if there is to be a labour dispute here, a practical (not necessarily legal) argument might be made that two countries is enough to dispute it in rather than one country and four provinces.

Where specifically in Sections 91 & 92 does it prohibit the notion ? (ignoring the precedent with MLB which isn't likely to be but might be distinguishable). None of the provinces made a fuss when the PM was agreeable to help mediate if called upon yet all the provinces offer a provincial level of mediation (different problem but ... the practicality of the notion was apparent as opposed to a mediator for the Leafs, Habs, Canucks, etc). There is a practicality I'm curious about while fully realizing it is not something that has been discussed for some legal reasons I may well not aware of. I realize that it very likely lacks precedent and is a half baked idea.

The increasing need for improvements to the mechanisms for resolving labor disputes that cross international boundaries is presently being discussed along with the increase in globalization, free trade, etc that has brought the increased need about. In this area, there have been 15(?) work stoppages in baseball and a few in hockey. Maybe it is time to at least consider the practicalities of dealing with these disputes when they go before labor boards.

Maybe there is a legal angle a sharp lawyer could explore or the NHL/NHLPA lobbyists might interest the Federal Government in. There should be a more efficient and economical ability to address these issues in fairness to both parties involved because the present circumstances make it so prohibitive it almost robs them of their collective bargaining rights to explore it. It also seems that our constitution would be in some error if it is the statute that prohibits these parties from the ease of practical access to those rights.

 

[Jaded-Fan]

you won the point?

The average salary in baseball has gone DOWN since the last cba was signed and the small market teams are making out from revenue sharing and the luxary tax. (not to mention when the yankees come to town most teams sell out) Using George Will as a source is like me using Mr Steinbrenner as a source. George Will is a minority owner of Baltimore.

You know Baltimore the team that had a higher payroll than the yankees in the 90's when the yankees were winning world series. (more proof that its not about how much money you spend but oh well) yes that george will a part owner of a once succesful team that spent and spent and spent but came up with nothing. Yes that george will. Please do some research on your sources next time. I hate the fact that when we have these debates you make it so easy for me to win. Jesus man put up a fight.

Baseball is proof that revenue sharing works. You want proof? Look at what the brewers sold for. Somebody paid more the 400 million dollars for a small market team. People aren't going to invest that much to lose money.

I think its time to go back to the drawing board my young friend. :lol

have a nice day.

Goerge Will, George Mitchell, Paul Volker and the President of Yale, appointed specifically by baseball to study the problem. Yes, the Paul Volker the UN hired of late. George Mitchell from the opposite end of the political spectrum who was good enough to be sent to Irealnd and the Mid-East to try to solve those conflicts. Biased? Please.

And you did not address any of the data that blue ribbon panel provided, nor the data that I provided showing that the problems that the Volker/Will/Mitchell/Yale Pres Panel enumerated only have been exacerbated despite more luxury taxing, other than calling me a dunce. I think that you gave up your hat prematurely.

And again, absent a luxury tax that is the virtual equivilent of a Cap a luxury tax will never really work in any sport. The reason is that there will always be owners willing to lose money to 'win.'

 

[Larionov]

Should the issue of replacement workers become a problem in Quebec or BC, exactly how many hours do you think it would take for the respective governments to change the law? Not many. It is clear to most reasonable people that a "replacement worker" ban was never meant to cover wealthy independent contractors, which is what NHL players clearly are. (They have proven that fact abundantly with the exodus to Europe.) Therefore, you can reasonably expect the Liberal governments in both provinces to act pretty quickly. Further, it's tough to imagine that either the PQ opposition in Quebec or the NDP in BC would spend much political capital to oppose it. Where are the votes in holding up the start of NHL hockey and going to bat for the 'PA? There aren't any.

 

[FLYLine27*]

Any1 else think Gary should have ended the GAG a week before? We see how much good its doing since he got rid of it. Now it just might be to late.

 

[GKJ]

This is the playoffs folks. Right here.