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Alberta Diary

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David Climenhaga, author of the Alberta Diary blog, is a journalist, author, journalism teacher, poet and trade union communicator who has worked in senior writing and editing positions with the Toronto Globe and Mail and the Calgary Herald. His 1995 book, A Poke in the Public Eye, explores the relationships among Canadian journalists, public relations people and politicians. He left journalism after the strike at the Calgary Herald in 1999 and 2000 to work for the trade union movement. Alberta Diary focuses on Alberta politics and social issues.

Eureka! Labour relations in Alberta explained by, of all things, hockey!

| January 8, 2013

All but forgotten amidst the rejoicing about the tentative end of the National Hockey League lockout reached during the Feast of the Epiphany on Sunday was the truly remarkable epiphany that occurred to the Alberta Labour Relations Board at the beginning of this unusual hockey season.

This is a pity, because while the behaviour of the ALRB is well known and understood to we few who toil in the vineyards of Alberta's union movement, it seldom comes to the attention of the rest of the world.

Still, it provides an opportunity for the rest of you to understand that, when we complain about the way in which the ALRB so typically operates, we are not just whining!

That small public benefit, in turn, is why I'm going to try to retell this story in simple terms, without the smarty-pants sarcasm and histrionic commentary that so often mars this blog.

The realization that suddenly and strikingly occurred to the ALRB on or about Oct. 10, 2012, was that the National Hockey League was, sui generis, somehow different from all the other employers out there.

This was important to the Board because it enabled it to rule in favour of the employer -- in this case, the billionaire toffs at the NHL's head office on Sixth Avenue in New York City -- instead of the league’s working stiffs, the mere millionaires scattered across North America on various sheets of ice.

But the principle of billionaire bosses versus millionaire employees, as far as the ALRB was concerned, turned out to be very much like the principles it observes in cases of millionaires versus real working stuffs, those who like most of the rest of us must survive from paycheque to paycheque.

A few days before the ALRB’s epiphany, on Sept. 15, the NHL had locked out all its players in both the United States and Canada -- including the ones who worked in Alberta for the Edmonton Oilers and the Calgary Flames and who were represented by a union called the National Hockey League Players Association, otherwise known as the NHLPA.

Now, the law that governs the relationship between employers and unionized employees in Alberta is pretty unequivocal about this -- it's illegal.

Let me say that again: It. Is. Illegal. Unless, that is, an Alberta employer gives three days' notice before locking the employees out.

And since the Edmonton Oilers and the Calgary Flames were without any question Alberta employers, their Alberta employees, represented by the NHLPA, went to the ALRB with a simple proposition that it require these two Alberta employers to obey this particular Alberta law.

Not that this would have accomplished all that much, one supposes, but at the very least a few NHL players might have been able to recoup three extra days' pay.

On the face of it, one would have thought the players' victory in this case was what is popularly known from another professionally played game as a slam-dunk -- that is, an absolute certainty.

Alas, as I wrote at the time, this was when the players "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."

So the ALRB got a panel together that put on its white plastic thinking helmets 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, which the Board kindly defined for as meaning "of its own kind or class."

The dispute between the NHL and the NHLPA was sui generis, the Board explained, 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."

And thus, the Board went on in Paragraph 41 of its decision, "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."

Therefore, they concluded, "from a purposive and practical perspective, the provisions had and have been complied with."

Again, I have regretfully to repeat what I said back in the fall: I am not making this up!

Of course, it is plain on the face of it that this ruling was utter codswallop, relying on logic unworthy of a moderately bright 10-year-old. But logic and the law often don't really matter very much when it comes to disputes heard before the ALRB.

Nevertheless, you can count on it that if a union had failed to notify an employer of its intention to strike, no panel of the Alberta Labour Relations Board could have been convened to conclude that even though the technical requirements of the Code had not been met, the employer fully understood and therefore, "from a purposive and practical perspective, the provisions had and have been complied with."

So here is the reality in Alberta in matters pertaining to relations between unions and employers: If workers have a strong position, then strikes are outlawed, either by preemptive legislation or by the action of the ALRB.

If the workers are in a weak position, say because the employer can easily find replacements (as happened at the Calgary Herald in 1999 and as is happening at the Devonshire Care Centre in Edmonton right now) or because the employer can bear the pain of a lockout (as happened to the NHLPA) then strikes and lockouts are allowed.

This is why, for example, it is quite legal in Alberta for a small group of highly trained Registered Nurses working in a private-sector, for-profit care centre to go on strike, but the guy putting special sauce on a burger in a franchise restaurant in the basement of a major hospital is forbidden to strike because he is risibly deemed to be delivering an "essential service."

And this is why, even in the case of millionaire hockey players, the clear meaning of the law can be twisted like a pretzel to get whatever result the Alberta Labour Relations Board desires.

Hockey fans across North America who are dusting off their favourite teams' ball caps and jerseys may not care very much just now, but at least they know.

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

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