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Smithson: Who are these guys, anyway?

By Oct. 23, the NHL collective bargaining dispute may be resolved. What won’t be clarified is the precise labour relations status of the relationship between the league and the NHL Players Association.

Early on in the dispute, the NHLPA applied to the Alberta Labour Relations Board for a declaration that the owners’ lockout was, in that jurisdiction, illegal.

The players wanted an injunction preventing the lockout as it pertained to the Edmonton Oilers and Calgary Flames (and for their training camps to open on a “business as usual basis”).

When I heard the NHLPA was making this application, my first thought was that this was a strategic error.

It struck me as a fairly petty, second-rate attempt by the players to mess with the lockout and it made the players look (to me, at least) a little buffoonish.

The failed outcome of that application was predictable. But the board’s decision produced some interesting details about a very murky labour relations structure that has produced three lockouts in the last 18 years.

The board called the owners-players relationship “a unique set of circumstances involving a unique work environment.” That it is, for certain.

“(B)oth the NHL and NHLPA have acknowledged the NHL is a joint venture and the sole and exclusive bargaining representative of the present and future clubs of the NHL. 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.

“The NHL-NHLPA relationship operates within a complex structure spread over multiple states and provinces in two countries. The NHL is comprised of 30 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’s relationship with its players.

“However, the collective agreement does not determine, subject to certain parameters, the compensation payable to individual players or the length of term of individual players’ contracts.

“These are matters that are subject to negotiation between the individual players, often represented by agents (not the NHLPA), and the teams they play for.”

This fact that the critical negotiation of salary and contract duration occurs between the individual player (or his agent) and the team is particularly unusual.

Typically, of course, the negotiation of wages is one of the key functions of a trade union and is largely (if not totally) out of the hands of individual workers.

“The NHL and the NHLPA have never established definitively which jurisdiction’s labour laws govern their relationship and therefore which labour board is empowered to adjudicate their disputes. Each party has, at one time or another, taken a position opposite to the one currently argued before this board and adopted strategic positions about jurisdiction that suited the immediate situation they were facing; thus, they have adopted positions of convenience of argument tailored to fit the jurisdiction and the dispute.

“In this sense, it is like they were squeezing Jello to watch where it lands in order to determine what approach to take, in what dispute, in whichever jurisdiction the argument is being advanced.”

It seems, then, that the relationship between the owners and the players operates independent of any particular statutory authority in either the USA or Canada.

Although the league makes some efforts to comply with local labour laws in the various provinces and states, NHL deputy commissioner Bill Daly acknowledged this is just because the league wishes to “cover all of its angles.”

“The NHL and the NHLPA have negotiated a succession of collective agreements together since 1975,” Daly said.

“The most recent collective agreement between the parties runs from July 22, 2005, through Sept. 15, 2011. It was extended one year by agreement.

“The collective agreement sets out extensive terms and conditions of employment governing all members of the NHLPA and the conduct of the NHL and its member clubs. These terms and conditions are far ranging and govern such matters as: when the players can show up for training camp; league-wide restriction on maximum players’ salaries; endorsements; licensing arrangements; a league-wide entry level compensation package; when a player can become a ‘free agent’ and forms of free agency; the requirement of league-wide approval on player contracts; insurance plans; pension plans…

“The Alberta Board, in dismissing the players’ application, stated, ‘The vacillating positions of the NHL and the NHLPA in this dispute underscore that the question of which jurisdiction’s labour laws apply to this relationship is anything but simple.’

“In our opinion, that issue, which has been left ambiguous by the parties for almost 50 years, is not best answered in the heat of a strike or lockout.”

So, who are these guys?  They are two groups of extremely wealthy people who have carved sort of a pretend labour-management relationship, which isn’t anchored to any jurisdiction’s labour laws, and which doesn’t determine the salary of any individual employee.

The current labour dispute will likely end, soon, with the result that players and coaches will be back on the ice.

The NHL and NHLPA will then probably just go back to “squeezing Jello.”

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