By David Doorey, Professor of Law, York University
I’ve been working on a law review paper that explores issues related to transnational collective bargaining in professional sports. That paper is almost done and if you want a “long read” about how professional sports leagues, teams, and player associations (unions) manage to bargain and administer collective agreements that cross national and provincial borders, you can find a draft here (once SSRN completes its review you can download the paper). There’s a lot going on in the longer essay, but in this post, I want to discuss an interesting argument that the National Hockey League has made in several Canadian labour board proceedings.
Here’s the context in a nutshell.
Some Canadian NHL Teams are Non-Union
In British Columbia, every players’ association in a major professional sport that has a Vancouver team is non-union. That’s because the Labour Relations Code defines a “trade union” as a “local or provincial organization or association of employees.” Since none of the players’ associations have a local or provincial presence, none of them are recognized as a “trade union” in BC. The NHLPA created a BC Chapter in 2005 and applied to be certified as the trade union that represents Vancouver Canucks’ players, but in a truly odd decision, the BCLRB tossed the application. So, Canucks players are non-union in BC but were also denied the right to unionize by the BCLRB. I discuss all this at length in the longer essay.
The NHLPA is also not a recognized trade union in Quebec, because the NHLPA obtained its bargaining rights through voluntary recognition and the Quebec Labour Code requires unions to be certified. So, all Montreal-based teams are also non-union, including the Montreal Canadiens (with the exception of the CFLPA, which was certified separately as the union representing the Montreal Alouettes of the CFL in 1997).
The Edmonton Oilers and Calgary Flames may also be non-union, though the reason why has less to do with the Alberta Labour Relations Code and everything to do with the parties’ agreement back in 2012 that the NHLPA has never been certified or voluntarily recognized for either Alberta team. Counsel for the NHL summarized the point this way:
there is agreement between the parties that there is no voluntary recognition relationship under the Code between the NHLPA and either of the Oilers or Flames Clubs (para. 26).
That admission was made during a proceeding in which the Alberta Labour Relations Board ruled that it would not intervene in an NHL lockout that violated the Alberta Code.
Therefore, at least two Canadian NHL teams, and maybe four, are non-union pursuant to the provincial labour laws that govern the teams. (I am assuming absent evidence to the contrary that the NHLPA has been voluntarily recognized in accordance with the provincial laws to represent the two Ontario teams and the Winnipeg Jets).
The fact that these teams are non-union creates a fascinating case study in labour law. What we have here is a transnational employer association (the NHL) bargaining on behalf of both unionized and non-unionized Canadian employers (teams). The employer association bargains with a transnational union, the NHLPA, that is the legal bargaining representative for some, but not all NHL players in Canada.
In the case of the non-union Canadian teams, the NHLPA stands in the same position as a non-union employee association. For players on these non-union teams, it is as if the NHLPA is a third-party representative they have hired to bargain with the league over some standardized terms and conditions of employment that will apply to all players and teams in the NHL. The resulting “collective agreement” between the NHL and the NHLPA does not itself become the employment contract of the players. Instead, the employment contract is a separate document known as a Standard Player Contract (SPC), which incorporates the terms of the collective agreement. The player’s salary and fixed term length of employment is bargained separately with their employer (the team). For that task, the player hires a player agent. In the end, all of this results in a single, individual employment contract (the SPC), which is (according to the SPC) the “sole form of employment contract.”
The NHL’s Argument that Canadian Labour Laws Do Not Apply to Non-Union Employers
That is enough background to get to the NHL’s argument that is the subject of this post. In a series of cases argued before the BCLRB, the Alberta LRB, and the Quebec Labour Commission, the NHL argued that Canadian collective bargaining laws do not apply to NHL bargaining, at least regarding the non-union teams.
There were two basis for this peculiar argument. Firstly, the NHL argued that the parties had simply agreed that U.S. labor law (the National Labor Relations Act) governs in Canada. This argument would presumably apply to all Canadian teams, even the ones that are properly unionized under Canadian labour laws. The premise is that private actors can just decide on their own to contract out of Canadian labour laws and apply the laws of foreign nation to Canadian employment contracts. Big, if true! Imagine if Walmart and Amazon could just slip into every employment contract that the NLRA governs all of its workplaces in Canada and that would oust annoying Canadian labour laws. Or better yet, why not choose the laws of Bangladesh? I am aware of no legal authority that supports the argument that private actors can contract out of Canadian collective bargaining statutes and none of the Canadian labour boards (or the NLRB) agreed that the NLRA governs Canadian employment contracts.
The second argument is more interesting. The NHL argued that, because the teams in BC, Quebec, and Alberta are non-union, any collective bargaining pertaining to those teams is “outside” of the Canadian labour legislation. Before the ALRB, the NHL argued that “the Code does not apply to the relationship between the NHL and the NHLPA.” The NHL told the Quebec Labour Commission that the “present conflict does not fall within the scope of the Code, since it does not involve a certified association.” The NHL was arguing that Canadian laws restricting “lockouts” do not apply to non-union employers. While perhaps the players could make common law complaints that the lockout breaches their individual employment contracts, those complaints would be dealt with in the courts. A lockout by a non-union employer is none of the labour board’s business, because collective bargaining laws regulating lockouts deal only with unionized employers.
What do we make of this argument that Canadian collective bargaining laws do not apply to non-union employers?
My take is that this argument fundamentally misunderstands Canadian labour law. To explain why, we need to go back to the beginning of “modern” Canadian collective bargaining legislation. The principal policy objective driving the decision of the federal Liberals to introduce “Wagner-style” labour legislation in the 1940s was the desire to restrict, impede, and control labour disputes. The government wanted to reduce the number of work stoppages, which were plaguing the War effort. Therefore, legislation was introduced, modeled after the American’s NLRA (Wagner Act), but tweaked to restrict work stoppages even more than under the NLRA. After the War, each province enacted its own labour legislation modeled after the federal law.
The “new” labour laws banned all work stoppages except for those taking place in a very narrow, tightly prescribed window of time. In essence, the laws prohibited all strikes and lockouts involving “employees” covered by the legislation but then carved out a narrow “safe harbour” in which strikes and lockouts would be permitted.
To enter that safe harbour, various criteria needed to be satisfied. For example, only unionized workers and employers could ever enter the safe harbour, marking the first major difference between the NLRA and Canadian law. The NLRA protects a limited right to strike that applies to unionized and non-union employees alike. Not so in Canada. A strike by non-union workers and a lockout by non-union employers is always unlawful in Canada, because those parties are unable to enter the safe harbour.*
Thus, the legislation prohibited “recognition strikes” by non-union employees of the sort that was causing havoc in the Canadian economy by declaring that “no employee shall strike” and “no employer shall lockout” employees unless and until the legal preconditions for a lawful work stoppage were satisfied. There are other conditions for entering the safe harbour that vary slightly from province to province, such as there not being a collective agreement in force, exhaustion of conciliation, and a successful strike vote. Only parties that have satisfied these conditions can lawfully engage in a work stoppage.
The NHL argued that none of these rules apply when the employer is non-union. Therefore, it did not matter that the NHL and the teams (the employers) did not satisfy the “safe harbour” preconditions for a lawful lockout in 2005 and again in 2012, because those preconditions only apply to unionized employers and the Canucks, Canadiens, Flames, and Oilers are non-union. Presumably, by the same logic, none of the rules governing strikes would apply to these teams either. Therefore, the NHL was arguing that non-union employees and employers continue to live in the legal world of the 1930s when it comes to strikes and lockouts, before Wagner-style legislation was enacted.
This is wrong.
All NHL players are “employees” within the meaning of Canadian collective bargaining legislation and the teams are “employers”. Therefore, the parties are covered by the legislation, including the rules that prohibit lockouts by “employers” except in narrow prescribed circumstances. To suggest that a non-union employer can lockout employees in circumstances in which a unionized employer could not misunderstands Canadian labour law.
Therefore, my take is that every NHL lockout (and there have been three, in 1994, 2004, and 2012) was unlawful in at least BC and Quebec because the teams located in those provinces were not in the legal “safe harbour” during which a lockout was permitted. Quite apart from whether the other preconditions for a lawful lockout had been satisfied (they had not been), a lockout of “employees” covered by labour legislation by a non-union employer is always an unlawful lockout.
By the same measure, a strike by players on non-union sports teams in Canada is also an unlawful strike. Therefore, the NHL players’ strike of 1992 that lasted 10 days, was unlawful at least in regards to players in the Canucks and Canadiens (and presumably the Oilers and Flames too, since the parties apparently agreed that the NHLPA had never obtained legal bargaining eights in Alberta).
Of course, just because the lockouts and strikes were unlawful violations of Canadian collective bargaining legislation, it does not mean that Canadian labour boards will do anything about it. In its 2012 decision, the Alberta LRB decided to just stand down and do nothing about the illegal lockout of Oilers and Flames players. In 2007, when it refused the Canucks players the right to unionize, it ignored the fact that the players had been unlawfully locked out by the team for nearly a year. In both cases, the labour boards decided that enforcing Canadian labour laws would disrupt the private model that the parties had developed, which treats the NLRA as if it applies in Canada, even though it does not. In my longer essay, I argue that this type of reasoning is one of the “legal fictions” that permits North American professional sports to operate as a unique model of transnational labour law.
* I’m leaving aside the argument that a collective work refusal for safety issues might in some circumstances be protected by health and safety legislation. My focus is on collective bargaining related strikes and lockouts.