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Alberta Labour Board decision on the NHL lockout

Alberta Labour Board decision on the NHL lockout

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Published by: pkGlobal on Oct 10, 2012
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October 10, 2012
Directed to:
Blair Chahley – Robert Blair, Chris Butler/Matt Stajan/MichaelCammalleri/Blake Comeau/Derek Smith/Tim Jackman/DennisWideman/Jarome Iginala/Sam Gagner/Nick Schultz/Shawn Horcoff/RyanWhitney/Eric Belanger/Corey Potter/Mark Giordano/Mikael Backlund/RyanSmyth/Mikka Kiprusoff/Devan Dubnyk/Ryan Jones/Henrik Karlsson/CorySarich/Alex Tanguay, National Hockey League Players’ Association - DonZavelo, Heenan Blaikie - Peter Gall, Q.C., McLennan Ross - Hugh McPhail,Q.C., Calgary Flames Hockey Club (Calgary Flames Limited Partnership) -Ken King, Edmonton Oilers Hockey Club (Rexall Sports Corp.) - HughMcPhail, Q.C., The National Hockey League - Bill Daly
RE: An application brought by the National Hockey League Players’Association, Chris Butler, Matt Stajan, Michael Cammalleri,Blake Comeau, Derek Smith, Tim Jackman, Dennis Wideman,Jarome Iginala, Sam Gagner, Nick Schultz, Shawn Horcoff, RyanWhitney, Eric Belanger, Corey Potter, Mark Giordano, MikaelBacklund, Ryan Smyth, Mikka Kiprusoff, Devan Dubnyk, RyanJones, Henrik Karlsson, Cory Sarich and Alex Tanguay
affectingthe Edmonton Oilers Hockey Corp., the Calgary Flames HockeyClub and The National Hockey League – Board File No. GE-06474
[1] Despite bargaining over the late spring and summer of 2012,
theNational Hockey League (“NHL”) and the National Hockey League PlayersAssociation (“NHLPA”) failed to reach a new collective agreement. As setout in a letter from William Daly, Deputy Commissioner of the NHL to theNHLPA leading up to the start of bargaining on May 15
, if the parties failedto reach a new collective agreement, the NHL wished to terminate thecollective agreement pursuant to section 8(d)(1) of the
U.S. National Labor Relations Act.
With no collective agreement achieved before termination,the NHL locked-out its players effective Sunday, September 15
.[2] The NHLPA and a number of its members
allege the lockout isunlawful in the province of Alberta as it is contrary to section 87 of the
Labour Relations Code 
(the “
“). The NHLPA seek a declaration to thateffect and a cease and desist order requiring the NHL and its two Albertabased member clubs to refrain from further unlawful lockout. Among otherremedies, the NHLPA also asks for an order requiring the Calgary FlamesHockey Club (Calgary Flames Limited Partnership) (“Calgary Flames”) andthe Edmonton Oilers Hockey Club (Rexall Sports Corp.) (“Edmonton Oilers”)to open training camp on a business as usual basis.
Unless otherwise indicated, all dates refer to the year 2012.
Letter from William L. Daly, Deputy Commissioner of the NHL, dated May 15,2012.
For ease of reading, when we refer to the NHLPA, we also include the individualmembers who are party to this application.
OUR VISION…The fair and equitableapplication of Alberta’scollective bargaining laws.OUR MISSION…To administer, interpret andenforce Alberta’s collectivebargaining laws in an impartial,knowledgeable, efficient,timely and consistent way.
501,10808 - 99 Avenue
Edmonton, AlbertaT5K 0G5Tel: 780-422-5926Fax: 780-422-0970308, 1212 - 31 Avenue NECalgary, AlbertaT2E 7S8Tel: 403-297-4334Fax: 403-297-5884E-mail:alrbinfo@gov.ab.caWebsite:www.gov.ab.ca/alrb
2[3] The NHL, Calgary Flames and Edmonton Oilers submit the application should bedismissed as the
does not apply to the bargaining relationship governing the NHL,Calgary Flames and Edmonton Oilers and that the Alberta Labour Relations Board (the “Board”)lacks jurisdiction to regulate the relationship between the NHL, its member clubs, and theNHLPA. Even if the
could or does apply, the Board should decline to intervene in thismatter as to do so would undermine the league-wide collective bargaining relationship betweenthe parties.[4] This matter came before a panel of the Board consisting of Board Members Kirkwoodand Moffatt together with Chair Asbell on Friday, September 21, 2012. At the conclusion of thehearing the Board reserved its Decision. The following constitute our Reasons for Decision.
Sui Generis 
[5] First, it should be noted that this case involves a unique set of circumstances involving aunique work environment. The latin term “
sui generis 
”, meaning “of its own kind or class”
isused in the legal context to describe cases that are unique and confined to their own facts, andtherefore may not be of broader application. This is one of those unique cases; it is truly one ofa kind within this Board’s experience. Thus although of interest to many, and especially hockeyfans, this Decision has little, if any, legal precedent within the labour relations jurisprudence inAlberta.[6] Professional sports leagues are a very different structure than that commonly seen in thelabour relations work environment and certainly the NHL’s structure as described to us by theparties is unique – at least in Alberta. The NHL-NHLPA relationship operates within a complexstructure spread over multiple states and provinces in two countries. The NHL is comprised of30 independent and competitive hockey teams – seven in Canada and 23 in the United States.These teams join together for the purposes of collective bargaining to negotiate with the players’collective bargaining agent, the NHLPA, common terms and conditions to govern each team’srelationship with its players. However, the collective agreement does not determine, subject tocertain parameters, the compensation payable to individual players or the length of term ofindividual players’ contracts. These are matters that are subject to negotiation between theindividual players, often represented by agents (not the NHLPA), and the teams they play for.[7] The NHL and the NHLPA have never established definitively which jurisdiction’s labourlaws govern their relationship and therefore which labour board is empowered to adjudicatetheir disputes. Each party has, at one time or another, taken a position opposite to the onecurrently argued before this Board and adopted strategic positions about jurisdiction that suitedthe immediate situation they were facing; thus, they have adopted positions of convenience ofargument tailored to fit the jurisdiction and the dispute. In this sense, it is like they weresqueezing jello to watch where it lands in order to determine what approach to take, in whatdispute, in whichever jurisdiction the argument is being advanced. As Ed Whelan, a famousformer Calgary sportscaster used to say, the parties have adopted the players’ credo of “doingwhatever it takes to put the biscuit in the basket”. These positions reflect neither a consensusbetween the parties nor any consistency in their individual positions. Hence, their past courseof conduct regarding jurisdiction is of limited assistance in resolving this current difference.
Black’s Law Dictionary 
, 2
3[8] For the most part it appears they have relied on United States legislation, specifically the
National Labor Relations Act 
”) interpreted and applied by the United States NationalLabor Relations Board (“NLRB”)
However, they have not turned exclusively to the NLRB. Infact, in the past, individual players have sought recourse from this Board including anapplication to find the NHLPA an employer dominated organization under Allan Eagleson, oneof its previous executive directors. Both the NHL and the NHLPA have also filed applicationsbefore our Board. And, for the past three disputes, including this one, the Board receivedlockout vote applications on behalf of the NHL, the Calgary Flames and the Edmonton Oilers.This, despite the NHL filing for a lockout with the NLRB. According to Mr. Bill Daly, the NHL’sDeputy Commissioner, this was done as the NHL was not sure on the outcome and wished tocover all of its angles.[9] The unique character of this dispute was emphasized by the dearth of directly on-point jurisprudence offered by the parties to assist the Board in resolving these questions. Ultimately,for the reasons discussed below, we have concluded that it is not necessary for us to answermost of the questions related to the Board’s jurisdiction. Nonetheless, we emphasize that thisdecision is restricted to these unique circumstances and is not intended to have broaderapplication.
Background and Factual Findings
[10] Although not consented to by the NHLPA at the hearing, previously both the NHL andNHLPA have acknowledged the NHL is a joint venture and the sole and exclusive bargainingrepresentative of the present and future clubs of the NHL.
The NHL operates a professionalhockey league based in several cities in both the U.S. and Canada. The Canadian clubsinclude one in Quebec, two in Ontario, one in Manitoba, two in Alberta, and one in BritishColumbia. This application involves the two clubs in Alberta – the Calgary Flames andEdmonton Oilers.[11] Both the Calgary Flames and Edmonton Oilers are “employers” within the meaning ofthe
as each club “customarily or actually employs an employee”
in the province ofAlberta.[12] As defined in its constitution, the purpose of the NHLPA, originally established in 1967,is, in part, to represent its members in collective bargaining with the NHL and its member clubs:1(b) To act on behalf of National Hockey League players in establishing andadministering terms and conditions of employment with their employers and, inparticular, as their exclusive bargaining representative in their relationship withthe National Hockey League and its Clubs for the purposes of, among otherthings, negotiating Collective Bargaining Agreements, and administering andenforcing the provisions of such Agreements.
 [13] In compliance with now section 24 of the
, the NHLPA filed its constitution togetherwith list of officers with the Labour Relations Board in 1989 but has not updated itsdocumentation since 1994. Notwithstanding this administrative oversight, there can be no doubt
Preamble of the Collective Bargaining Agreement between NHL and NHLPA dated July 22, 2005 – September 15, 2011 – Exhibit 2.
Section 1(m) of the
Labour Relations Code.
Constitution of the NHLPA ratified December 2010 – Exhibit 5.

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