By David Doorey, Professor of Law, York University
Let’s talk about the new WNBA team, the Toronto Tempo, and my favorite topic, labour law.
Collective bargaining towards renewal of the collective agreement between the WNBA and the players’ union, the WNBAPA, is not going well. A bargaining deadline of Halloween night seems unlikely to be reached, setting the stage for a possible strike or lockout, or other action (such as a move by the union to de-certify and file anti-trust lawsuits). Players are anticipating that the WNBA will lock them out if no deal is reached. The odds that a bargaining dispute will interrupt the start of the season in May or training camp in April remain low. There’s a long way to go before then. However, the state of collective bargaining is important for the Toronto Tempo.
Most notably, the Tempo cannot get players until a new agreement is reached. That’s because the expansion draft, which is tentatively scheduled for early December, is governed by the terms of the collective agreement (Article XXXIII in the expiring agreement). Since the Tempo will not employ any players until after a new collective agreement is in place, the question arises as to how players employed in Ontario come to be covered by a collective agreement negotiated in the United States pursuant to U.S. labor laws?
There are only two possibilities: (1) through the doctrine of “accretion”; or (2) pursuant to a voluntary recognition agreement or certification according to Ontario labour laws.
The Doctrine of Accretion, But with an Unusual Twist
The WNBAPA obtained legal bargaining rights to represent players under U.S. law in 1998 pursuant to a “voluntary recognition.” That means that the league and the teams agreed to treat the WNBPA as the exclusive collective bargaining representative of the players. The WNBAPA must have been able to demonstrate in 1998 that it represented a majority of players employed by WNBA teams. The parties then bargained a collective agreement, which has since been renewed multiple times. In the “recognition clause” (Art. II) in the collective agreement, the league recognizes the WNBPA “as the exclusive collective bargaining representative of all persons who are employed by WNBA teams and/or who may become so employed during the term of any collective agreement…”
Now, let’s say that by April 2026, the Toronto Tempo is the employer of 12 new players who came via the expansion draft, free agency, and the regular draft. Are those players and the Tempo team automatically covered by the newly concluded collective agreement? The recognition clause (assuming it remains the same in the new agreement) sure makes it look that way. By virtue of the clear language, Tempo players would be “persons employed by” an WNBA team. However, let’s pause for a moment to pay attention to how unusual this is.
What I have just described–the automatic sweeping in of new employees into a pre-existing collective agreement–is known in labour law as an “accretion” to the bargaining unit. Accretion is notable because it involves an unusual break from the driving philosophy of the Wagner model style of collective bargaining used in Canada and the U.S., which is that workers should have a right to choose whether they want collective bargaining. Sometimes, Canadian labour boards have required evidence that a majority of employees in the “accredited unit” want to be represented by the union, but more often the wishes of the new employees are simply ignored. For a discussion of the development of the Ontario approach to accretion, see here. Therefore, the doctrine of accretion permits a union and employer to agree ahead of time that any new workplace that is opened during the term of the agreement and that falls within the collective agreement recognition clause is automatically covered by the agreement.
So, if accretion applies, the 12 new Tempo players would be automatically swept into a pre-existing bargaining unit covering about 150 other employees, all of whom are employed in the U.S. by 13 different U.S. employers. Applying the doctrine of accretion to this scenario is unusual in a couple of respects.
Firstly, it involves a transnational accretion; parties in another country governed by that other country’s labor laws decided to sweep in a Canadian workplace before the Canadian workplace had any employees in the bargaining unit. I’m unaware of any non-sport example in Canada of extra-provincial accretion, wherein a collective agreement covering provincially regulated employees in one province sweeps in employees located in another province, let alone other examples of accretion applying to workers in another country.
Imagine that the United Food and Commercial Workers bargained a collective agreement with Starbucks in Seattle that purported to cover “all Starbucks employees in North America.” Thereafter, every Starbucks in Canada and every new Starbucks store opened in Canada (or Mexico) is automatically swept into the collective agreement, without anyone asking the Canadian (or Mexican) employees what they think. Could UFCW and Starbucks do that? I’m quite certain that a Canadian labour board would, at the very least, require the UFCW to demonstrate that it represents a majority of the Canadian employees at the stores in each province.
There’s a second aspect of the WNBA scenario that is unusual. The accretion would also sweep in the Toronto Tempo itself: the employer. Remember that the players are not employed by the WNBA. The teams are the employers. The WNBA collective agreement is between the WNBA and the WNBAPA and it governs the employment relationship between the players and the teams that employ them. The Toronto Tempo is a Canadian business, but the WNBA collective agreement purports to automatically bind it to the pre-existing American collective agreement that applies to 13 other U.S. companies. Therefore, we are talking about an accretion of an entirely new employer located in a different country than where the recognition clause was negotiated. Again, this is unheard of, outside of pro sports. The United Auto Workers did not just sweep Canadian subsidiaries of the Big Three American car manufacturers into the American bargaining unit. Instead, the UAW organized the Canadian factories separately under Canadian labour laws.
There are OLRB decisions in which a newly organized employer (and its employees) were swept into a pre-existing “industry” collective agreement. However, I’m not aware of any Canadian case (outside sports) in which a Canadian employer was “accredited” into an American-based collective agreement. The very notion of the idea seems counter to our understanding of labour law in Canada. Yet, I suspect the WNBA, the Tempo, and WNBAPA will just behave as if the Tempo and its players have been magically swept into the WNBA collective agreement the moment the players are selected. This is essentially how it played out when the Blue Jays joined MLB and the Raptors and Vancouver Grizzlies joined the NBA.
However, if we play along with the idea that American employers and an American union can bargain a clause that just sweeps in a new Canadian employer and its Canadian employees, we are still left with difficult labour law questions. Even though the Tempo and its players have been “accredited” into the pre-existing collective agreement bargained in the US, Ontario labour law still governs the employment relationship between these two parties. The U.S. National Labor Relations Act does not apply in Ontario. Whatever else the “choice of laws” clause in the WNBA collective agreement, which states that the agreement is governed by “the internal law of the State of New York”, might mean, it cannot supplant the application of Ontario labour laws to Tempo employees.
[Indeed, the WNBA collective agreement (Article XXXV) expressly contemplates that Canadian laws would govern players employed in Canada in the event of an expansion, although some of the terms in the “Canada” article should really be reviewed by a Canadian labour lawyer (that’s for another post)]
Therefore, the WNBA and the Tempo must comply with all of Ontario’s labour laws. For example, the Ontario Labour Relations Act requires secret ballot votes to ratify collective agreements and as a precondition for a lawful strike. A majority of “bargaining unit” employees must vote in favour of the agreement and the strike. Do these laws require that the Toronto Tempo players must support the agreement and the strike? In other words, is the WNBAPA required to take a separate ballot of just Tempo employees to comply with Ontario law? Or are Ontario’s ballot laws satisfied so long as a majority of the entire bargaining unit votes in favour? If the latter is true, then the Ontario-based employees will always be swamped by the American majority. Every player on the Tempo could vote against a strike, but if the overall vote of players employed in the U.S. vote to strike, would that make the strike lawful in Ontario?
Another question: How does the law of “decertification” work in this scenario? If the Ontario employees are just swept into the much larger U.S. based bargaining unit, then the employees have no possible way to exercise their statutory right to decertify. A group of just 12 employees in a unit of 150 employees (or more) cannot just decide to walk away from the bargaining unit. If a transnational accretion of Ontario employees is permitted, then all the Ontario laws designed to grant Ontario employees a right to participate in major labour relations decisions are surrogated to the will of the much larger contingent of employees employed in another country. American employees decide for the Ontario employees. It’s hard to over-emphasize how weird that is.
Another Model That Makes More Sense: Apply Canadian Labour Law to Canadian Employees
Of course, there is a more straightforward option available. The WNBA could just organize the Tempo players separately under Ontario law, either by obtaining a voluntary recognition agreement from the Tempo or by getting certified by the OLRB. This would result in there being two bargaining units, one covering all U.S. based players and teams, and one covering the Tempo and its players. The WNBA collective agreement would then act like a master agreement that covers both bargaining units. This is sort of how the Canadian Football League bargaining works: there is one master collective agreement, but the teams are spread across 6 labour law jurisdictions. Since voluntary recognition doesn’t exist in Quebec, the Montreal Alouettes players obtained a formal union certification. The CFLPA bargains a single agreement, but the parties are careful to comply with all the provincial laws. In reality, the CFL collective agreement covers multiple bargaining units.
This was also the approach taken in the now defunct North American Soccer League, as I explained in this earlier post. The players’ association obtained formal certification from the NLRB for all U.S. based teams and players, but not the Canadian teams. The Association then obtained separate certifications for the teams in Vancouver, Toronto, and Edmonton under the provincial labour laws. Therefore, the collective agreement that was eventually concluded looked like a single agreement, but in legal terms it covered 4 different bargaining units spanning two countries (and three provinces).
The main benefit of this approach is legal clarity. It is a legal fact that the provincial laws of Canada govern the employment relationship of players on Canadian teams. This approach simply makes that legal reality visible. The Tempo players are in their own bargaining unit, which is governed by Ontario labour law. They are entitled to vote on collective agreements and strikes separately from the U.S. employees. They can de-certify in the “open period” if they want to, just as Ontario labour law envisions. This might seem unlikely, but there have been occasions where sports unions have decertified for strategic reasons. The NHLPA once explored how to decertify all the Canadian NHL teams as a bargaining tactic. If the provincial labour laws governing the Canadian teams prohibit the use of replacement workers (as B.C. and Quebec labour laws do), then everyone can clearly see that the leagues cannot use replacement workers in those provinces, even if the use of replacement workers is legal in the U.S. American labor law governs U.S. teams, Canadian labour law governs Canadian teams.
It’s possible under this approach that players on a Canadian-based team could vote against a collective agreement while an overall majority of players in the league vote for the agreement. Firstly, I doubt that would ever happen in practice so it’s a hypothetical paper tiger. Secondly though, so what. If applying the law properly creates some collective bargaining difficulties, so be it. When the OLRB ruled in the 1995 that Major League Baseball could not use replacement umpires in Toronto games because Ontario law prohibited that practice, the parties reached a deal. Players’ Associations could right now unilaterally enact a constitutional rule requiring that a collective agreement must be ratified by a majority of players on every team as well as by an overall majority of players. There’s nothing wrong with that. In fact, one might argue that sort of rule amounts to best practice good governance.
In practice, when the pro sports leagues have added Canadian teams, the parties have not overthought these issues. They basically just pretend its perfectly normal and proper to have a single collective agreement that applies in two countries and they behave as if American labor law governs. Canadian labour law is considered a nuisance. Frankly though, if I were running a North American players’ association, I would be obtaining separate Canadian bargaining rights for the Canadian teams. More often than not, Canadian labour law is superior to U.S. labor law. Why defer to a weaker legal regime? I will return to this topic once the Tempo have some players! Go Tempo!