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NHL and NHLPA in labour relations face off: No penalties for Alberta employers caught offside

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Since the regular season of the National Hockey League was supposed to start yesterday, but won't be starting anytime soon, let’s take this opportunity to pay tribute to the remarkable efforts of the Alberta Labour Relations Board.

The vision of the ALRB is "the fair and equitable application of Alberta's collective bargaining laws," and don't feel you have to take my word for that. It's right there on the letterhead they use to print their decisions.

Alberta's collective bargaining laws, for example, say that you can't just go on strike or, if you're an employer, lock out your employees. There’s a process for that.

If you're an Alberta employer, for example, with an Alberta work force represented by a collective bargaining agency, you've got to jump through certain hoops before you can lock their sorry asses out in the street. (Wrong sport! — ed.) Indeed, a casual reading of the law would suggest that this is true even if the employer in question happens to be a billionaire.

So, for example, you’ve supposed to tell your employees in writing that you’re going to do it, than wait three days, and then lock their sorry asses out!

Something like that, anyway. I'm trying not to get too technical here, because if I did, everyone would stop reading. I hope my colleagues in the labour relations field, plus the Board of course, can forgive me.

Anyway, back on Sept. 15, the NHL locked out all its players -- including the ones who work in Alberta for two well-known Alberta businesses known as the Edmonton Oilers and the Calgary Flames.

Since the Oilers' and the Flames' employees are represented by a collective bargaining agency, which happens to be called the NHL Players Association, I guess the players just sort of assumed that their two Alberta employers would have to obey the rules that are set down in black and white in a law called the Alberta Labour Relations Code. (Hereinafter called, as they like to say down at the Board’s headquarters, "The Code."

Because, you see, for some reason the owners of the two Alberta businesses they work for and with which their collective bargaining agency was trying to bargain collectively had forgotten to fill out the paperwork and wait the interminable and endless-seeming three days before they could kick their sorry butts into the street. Or something.

Now, as is well known, the hockey players employed by these two companies are fairly well paid, some of them are even said to be millionaires and therefore likely quite used to getting their way. That may be why they decided it was a reasonable thing for them to ask their employers to obey the law of the land, specifically this land, and so off they went to the Alberta Labour Relations Board, plastic helmets in hand, to ask it to tell their employers to cease and desist illegally locking them out of their jobs in violation of The Code.

Silly boys.

That was when they learned something that a lot of us who have sat down and tried to negotiate with billionaires in this province have already learned, and that is that the Alberta Labour Relations Board has rarely met a billionaire it couldn't agree with.

This could have been a problem for the ALRB, seeing as it seemed pretty straightforward on the face of it that the two owners were breaking the law in the way they went about locking their employees' sorry millionaire keesters out of their rinks.

However, the Board got a panel together that put on its thinking caps (which may or may not look something like a plastic hockey helmet, I can't say because I wasn't invited to their deliberations) and came to the conclusion that the rules written down in black and white don't apply to NHL hockey franchises doing business in Alberta and employing people in Alberta because they are Sui Generis, that is, a Latin term meaning exempt from obeying the law.

Wait! It means "of its own kind or class," the Board's learned Latinists kindly informed us in its ruling -- with a footnote and everything! In Alberta, however, that apparently means you're exempt from obeying the law.

This, the Board explained, is because having to obey the law "would be detrimental to the ongoing relationship between the parties and the ability of the league to function properly." (People, I’m really not making this up. You can click here and read it for yourself!)

For those of you who haven’t lived and worked in Alberta, the reason for this is that making things convenient for extremely wealthy people is just so important we can't let something like a dumb old law get in the way of it! If you live somewhere else, this should help you understand why Prime Minister Stephen Harper and the other Albertans running the train in Ottawa behave as they do.)

And so, the Board went on to say, in Paragraph 41 if you happen to be looking for it, that "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."

Ergo (which is Latin for now we're really going to stick it to you), these great minds concluded, "from a purposive and practical perspective, the provisions had and have been complied with."

Again, I repeat. I am not making this up.

Well, I'm an optimist. I assume that if an Alberta union were now to feel the need to hit the bricks without taking a vote, without writing anything down and without giving the employer any notice whatsoever, this means the Board would strike a panel and rule that "even if the technical requirements of a strike in the Code have not been fully met by the union in these circumstances, we are satisfied the employer fully understood what was at play and that it understood the union would, and did, strike if no agreement was reached.  Thus, from a purposive and practical perspective, the provisions had and have been complied with."

Oh, wait, Alberta unions are never Sui Generis, the characteristic cry of the Roman swineherd as he summons his beasts to their slop.

No, here in Alberta, if you're just a working stiff, the Labour Code really does still apply to you, and always will. (Although not necessarily in its present form, if the billionaires get their way.)

And it will apply fairly and equitably to your employer too. (See the ALRB's Vision Statement, quoted above.) Unless he's a billionaire, of course, which while not exactly Sui Generis in this province will likely turn out to be Sui Generis enough.

Offside? You bet!

This post also appears on David Climenhaga's blog, Alberta Diary.

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