Can NHLPA get lockout ruled illegal?

If the NHLPA succeeds in getting the Quebec Labour Board to declare the NHL lockout illegal in the province, the Canadiens could end up in training camp while other teams sit idle. (Photo by Francois Lacasse/Getty Images)

By Stu Hackel

We head into the final week of the NHL's current collective bargaining agreement and while the lines of communication remain open -- which is a good sign -- the sides still appear to be far apart in how the league's business should move forward.  The owners have pledged a lockout if a new deal isn't reached by midnight Saturday and they'll convene a Board of Governors' meeting later this week to discuss and perhaps ratify that tactic.

But the NHLPA -- which has maintained all along it would play without a contract as long as the sides continued to negotiate -- has launched efforts on another front to keep the doors to the rinks open, namely by using labor law to stop the league from forcing a work stoppage.

The PA has been challenging the lockout in various Canadian provincial bodies by using legal arguments. “The players are committed to reaching a fair deal with the NHL owners through CBA negotiations and we have told the NHL that the players are willing to continue to negotiate if an agreement isn’t reached prior to the expiration of the CBA," Canadiens alternate player representative Eric Cole told Dave Stubbs of The Montreal Gazette. “The NHL seems content to lock out the players if an agreement isn’t reached this week, and we would like the Quebec Labour Board to step in and inform them that their lockout would be in direct violation of the Quebec labour laws.”

La Belle Province is only one jurisdiction in which the NHLPA has looked into law and sought to have the authorities side with the players in preventing a lockout in that region. In both Alberta and Ontario, the PA has prepared challenges to the legality of the owners intended lockout and Stubbs reported the union said Sunday night it was “exploring its options” in B.C. and Manitoba.

Saying the players just want to play while the owners seem determined to lock them out, Canadiens defenseman Josh Gorges, who is on the NHLPA negotiating committee, told a media conference call Monday afternoon, "The players are going to use every tool at our disposal to stop them. Nothing is more disruptive to bargaining than a lockout. Our message to the Quebec and Alberta governments, and to the federal government as well, is that we would hope they realize how important hockey is to this country. Hockey is in our blood. Just as important, hundreds if not thousands of workers and businesses count on hockey for their livelihoods. A lockout will have major impact on them as well. Ultimately, we hope that the governments will not allow themselves to be used as rubber stamps in the owners' rush to impose a lockout. We hope they will realize what's at stake here."

(Full audio of the telephone news conference can be heard here, from Stubbs, posted on The Montreal Gazette's Hockey Inside/Out blog)

For his part, NHL Deputy Commissioner Bill Daly called the PA tactic "a joke" in an email to Canadian Press.

In Quebec, the NHLPA's case is based on the fact that the players’ union has not been certified by the Quebec Labour Board and, according to Quebec law, an employer cannot lock out employees unless they are represented by a union certified by the QLB.

"The Canadiens players, the NHLPA said Sunday night, have the right to apply to the QLB for an order that would prevent Canadiens ownership from locking players out after Sept. 15, when the CBA expires," Stubbs reported. "Canadiens players, through their Montreal-based lawyer, Michael Cohen, sent a ‘cease and desist’ letter to the owners of the Canadiens and to the NHL on Friday, Sept. 7. Unless they cease their threats to lockout, the players will make an application to the Quebec Labour Board this upcoming week seeking to stop the Canadiens from locking out their players. If the Quebec Labour Board agrees, the NHLPA contends, it could order the owners of the Canadiens not to lock out the players or to end a lockout in Quebec if one has started."

Stubbs adds that the Habs players tried to receive certification in 2005, during the last lockout, but the league filed a formal opposition to that and so the players abandoned the effort. The lockout ended that July.

As we noted here on the blog over the weekend, this follows a similar development out of Western Canada: Scott Cruickshank of The Calgary Herald reported on Saturday that the NHLPA filed a challenge Friday at the Alberta Labour Relations Board aimed at preventing the Flames and Oilers from locking out those players.

Under Alberta labour law, the NHL cannot hold a lockout vote unless it has first requested a mediator. The league did request a mediator and the province appointed one on Aug. 21. But the NHLPA argues in its challenge that the league showed no willingness to participate in the mediation.

“According to the union,” Cruickshank writes, “the process, at the NHL’s insistence, was halted after only three days -— without a single meeting between the sides. Law requires a 14-day wait for the mediator. Boiled down — the NHLPA is contending that the league, in its eagerness to clear the way for a Sept. 15 lockout, failed to take certain preliminary steps and then rushed through the process, all of which renders it defective. Meaning a lockout vote should not be permitted.”

Former NHL defenseman Mathieu Schneider, the NHLPA’s special assistant to Don Fehr, said Friday, “The players are committed to finding a way to reach an agreement without a lockout, and we are hopeful that the Alberta Labour Relations Board will assist in these efforts.”

A hearing is scheduled in Edmonton on the PA’s challenge some time this week.

It’s uncertain what a finding in favor of the players in Alberta or Quebec would mean elsewhere in Canada or in the U.S. It doesn't seem as if these provincial laws would have any standing elsewhere, but one can just imagine the mini-chaos that would ensue if the Flames, Oilers and Canadiens were not permitted to keep their players from reporting to training camp later this month while the rest of the NHL's players were locked out. Will ownership still want to proceed with a lockout that they cannot universally enforce? What will the players who can report do when it comes times to play their preseason games? This is one thing that lawyers from the league, players and various government labor relations entities will no doubt have to sort out.

Gorges noted when taking questions from reporters on Monday that if the Canadiens players prevail, they would report, use the team's facilities, work with the coaches and start receiving paychecks. Locked out players would be prohibited from using the clubs' facilities or working with their coaches and they certainly would not be paid. "We're not doing this so players in Montreal can get salary," Gorges added. "We're trying to put pressure on the owners' side to get a deal done."

Rick Westhead in The Toronto Star reported Friday that the NHLPA attempted to do what it tried in Alberta -- have the Ontario government mediate the differences between the Senators and Maple Leafs players and the teams' owners. But last week, the Ontario Ministry of Labour rejected the request.

“We were hoping that the province would take an active role and help us and the league try to reach an agreement so we could have hockey this fall,” Alexandra Dagg, director of operations with the NHLPA, told Westhead.

Daly, who attended the meeting with the labour ministry, told Westhead, “Our view is that the union’s request was a pretext in an attempt to create a technical impediment to the implementation of a lockout.”

Westhead reported that Daly told him that the league has already met and retained representatives with a mediation service in Washington that has previously worked on hockey labor negotiations. “They are monitoring our ongoing discussions,” Daly said.

Any challenge the NHLPA would potentially file in the U.S. would go in front of the National Labor Relations Board, but a PA spokesman told Red Light late Monday afternoon that no similar efforts are underway in the States.

Of course, the PA's efforts may not produce a halt to the league's plan. But if they do, you can be fairly certain the NHL will challenge the challenges in front of a judge.

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