Alberta Labour Board dismisses NHLPA claim lockout is illegal

By Helene Elliott

Oct. 10, 2012 12 AM PT

The Alberta Labour Relations Board dismissed an application by the NHL Players’ Assn. to declare the league-imposed lockout illegal in that Canadian province and allow the Edmonton Oilers and Calgary Flames to conduct training camp and other business as usual.

The decision was issued Wednesday, on the eve of the NHL’s scheduled but now-cancelled season openers. The league has cancelled games through Oct. 24 because of its dispute with players over a new collective bargaining agreement.

In a decision signed by chairman Mark. L. Asbell, the board noted that the NHL and the players’ union had, at various times, argued a position opposed to its current stance. He also said the board had many reasons to exercise its discretion and not make a declaration of unlawful conduct and not to issue any remedy for several reasons.

“First, because of the league-wide structure of the lockout, we are not satisfied the granting of a declaration will have any practical impact. No one suggests that our order would affect teams or players outside Alberta. There is no dispute the lockout declared by the NHL is legal and valid pursuant to the NLRA,” he wrote, referring to the National Labor Relations Act. “The parties are struggling to find a resolve to this and, it is our expectation this is nothing more than an unhelpful distraction from their efforts.

“From our review of the collective agreement, even if we were to order this lockout to cease in Alberta, the effect would be, at most, that the players of Calgary Flames and Edmonton Oilers may have the opportunity to go to training camp. Under the collective agreement, training camp cannot start until 20 days before the start of the regular season. The regular season is completely at the discretion and scheduling of the NHL. As the lockout is league-wide, the NHL is not about to schedule, and start, the regular season for two teams.

“Additionally, the players themselves do not start getting paid until once the regular season starts. They only receive a per diem during training camp. Thus, an order declaring the lockout to be in violation of the Code would have no positive impact on this dispute.

“Second, we do not wish to encourage parties to take purely strategic, inconsistent positions about jurisdiction in the course of a dispute. Whether parties can agree to confer or avoid jurisdiction or not, or whether a bargaining agent may waive jurisdiction on behalf of its members or not, it simply does not advance good faith bargaining for a party to agree one week that the Code has no application to the relationship and the next week to argue it does.

“Third, even if the technical requirements of the preconditions to lockout in the Code have not been fully met by the NHL in these circumstances, we are satisfied the NHLPA fully understood what was at play and that it understood the NHL would, and did, lock the players out if no agreement was reached. Thus, from a purposive and practical perspective, the provisions had and have been complied with.”

So, to translate legalese to English: “Finally, for this Board to intervene in this dispute and declare the lockout illegal as it relates to the Alberta teams and their players (or otherwise interfere with the progress of collective bargaining on a league-wide basis) would be detrimental to the ongoing relationship between the parties and the ability of the league to function properly.

“The result of such an intervention by this Board would be to effectively remove the Calgary Flames and Edmonton Oilers teams and players from the league-wide collective bargaining process that the parties have historically engaged in and has been established and recognized under thee NLRA. The Calgary Flames and Edmonton Oilers Clubs could not participate in the league-wide lockout in which the rest of the League is engaged as part of the current collective bargaining process.”

Reactions to the decision were predictable.

“We are pleased with the Alberta Labour Board’s ruling today that the lockout of Players is effective on a League-wide basis, including in Alberta, and we are extremely appreciative of the decisive manner in which the matter was handled,” NHL Deputy Commissioner Bill Daly said in a statement released by the league.

“We are hopeful that this ruling will enable both the League and the NHL Players’ Association to focus all of our efforts and energies on negotiating a new Collective Bargaining Agreement in order to get our game and our Players back on the ice.”

The NHLPA released an unattributed statement that read:

“The players are obviously disappointed with today’s decision. Unfortunately, the Alberta Labour Relations Board decided not to exercise its discretion to determine whether the owners’ lockout violates Alberta law. We will consider our further options with regard to this case.

“In the meantime, the players want to play, the fans want to watch the game, and the many workers and business owners who are dependent on NHL hockey for their livelihood want the season to start. We remain committed to reaching a fair agreement at the earliest possible time and hope that the NHL begins to show a willingness to do so.”

The NHL and the union met in New York on Wednesday and set aside time to meet again on Thursday.