Case Name: Orca Bay Hockey Limited Partnership (Re)

Page 1 Case Name: Orca Bay Hockey Limited Partnership (Re) Between Orca Bay Hockey Limited Partnership ("Orca Bay"), and National Hockey League ("NHL"), and British Columbia Chapter of The National Hockey League Players' Association ("BC-NHLPA") [2007] B.C.L.R.B.D. No. 172 144 C.L.R.B.R. (2d) 219 BCLRB Decision No. B172/2007 (Leave for Reconsideration of BCLRB No. B138/2006) Case No. 55143 British Columbia Labour Relations Board B. Mullin (Chair), M. Fleming (Associate Chair) and P. Topalian (Vice-Chair) Decision: July 31, 2007. (78 paras.) Appearances: Peter Gall, Q.C., for Orca Bay and the NHL. Bruce Laughton, Q.C., for the BC-NHLPA. DECISION OF THE BOARD

Page 2 I. NATURE OF APPLICATION 1 Orca Bay and the NHL (the "Applicants") apply under Section 141 of the Labour Relations Code (the "Code") for leave and reconsideration of BCLRB No. B138/2006 (the "Original Decision"), which dismissed Orca Bay's objections to the BC-NHLPA's application for certification. The Applicants submit that the original panel erred as a matter of law and policy under the Code in concluding that a separate bargaining unit including only the Vancouver Canucks would be an appropriate bargaining unit under the Code. II. BACKGROUND 2 The background to this matter is set out in detail in the Original Decision and can be summarized as follows. 3 The NHL is a professional hockey league whose teams and players are located in Canada and the United States. The NHL grants franchises to owners to operate the teams that participate in the league. There are six teams in Canada and 24 in the United States. One of the Canadian teams is the Vancouver Canucks, the franchise for which is owned by a limited partnership resident in Vancouver, Orca Bay. 4 The NHLPA was formed in 1967 to represent the players in the NHL. The NHL voluntarily recognized the NHLPA in 1967, and successive collective bargaining agreements (the "CBA") have governed the relationship between the NHL and the NHLPA since at least 1975. In addition to the terms of the CBA, players are also governed by individual contracts between the player and the team for which they play. The basic terms of the individual player contracts are set out as an attachment to the CBA, referred to as a Standard Player's Contract. 5 A major collective bargaining issue in the most recent round of negotiations between the NHL and the NHLPA involved the establishment of a limit and a range in respect of team salaries. In September 2004, the NHL and its member teams locked out the players represented by the NHLPA. The BC-NHLPA's certification application, which relates only to the Vancouver Canucks players, was filed in the midst of the lockout. After the certification application was filed, the NHL and NHLPA requested that the Board proceedings concerning the application be adjourned to allow the parties to focus on collective bargaining. 6 Notwithstanding the BC application for certification, the NHLPA continued bargaining with the NHL on behalf of all its player members on a league-wide basis, and eventually concluded a league-wide CBA. After those negotiations were concluded, the BC-NHLPA advised the Board that it still wished to proceed with its application for certification of the Vancouver Canucks players. III. ORIGINAL DECISION 7 The Original Decision notes that, at the outset of the hearing, Orca Bay and the NHL withdrew

Page 3 their objection that the Board did not have jurisdiction to hear the BC-NHLPA's certification application; they concede that provincial law, specifically the Code, governs the application (para. 79). 8 While conceding that the Board has jurisdiction to issue the certification, the Applicants argued that the NHL and the NHLPA, by their conduct for the past three decades, had established a collective bargaining system that was premised on a league-wide framework which imposed a common set of rules under which the NHL member teams and their players operate. They submitted a bargaining unit consisting of the players of a single NHL team would not be a unit "appropriate for collective bargaining" within the meaning of Section 22(1) of the Code. They submitted that granting the application for certification would have negative ramifications on the league-wide collective bargaining structure that the Canucks players have been part of for decades, including both before and after the application for certification. 9 The NHL and Orca Bay further submitted that the Canucks players had voluntarily chosen to be part of a league-wide collective bargaining relationship, and that it was untimely for them to withdraw from that bargaining structure during the course of a labour dispute. They noted that the Canucks players, despite their application for certification through the BC-NHLPA, bargained under the banner of the NHLPA for a new six-year collective agreement, with all other NHL players. The Applicants said that during the term of the new collective agreement, the Canucks players could put the NHL on notice that they are withdrawing from the league-wide bargaining structure at the conclusion of the collective agreement. 10 The BC-NHLPA argued that the issue was whether the unit applied for was an appropriate bargaining unit, not the most appropriate bargaining unit possible. If it is an appropriate unit, then it should be certified. The past history of voluntary recognition of the NHLPA by the NHL and consequent league-wide bargaining is not a legal impediment to the application for certification. Notwithstanding that history, the Canucks players have a right under the Code to union representation and certification if they meet the statutory requirements. The BC-NHLPA submitted the unit applied for is appropriate and therefore must be certified. 11 The original panel began its analysis by noting that the circumstances of this case were "unique in some respects, yet strikingly typical in others" (para. 111). They are unique in that they involve players for an international sports league who regularly travel outside the province to perform some of their work, but they are typical in that the application for certification is from an entity (BC-NHLPA) that purports to be a British Columbia trade union, applying to be certified as the exclusive bargaining agent for a group of British Columbia employees, who are employed by a British Columbia employer (paras. 111-113). 12 After concluding that the BC-NHLPA is a trade union under the Code (paras. 114-134), the original panel next turned to the question of bargaining unit appropriateness. The original panel notes that the NHL and Orca Bay do not argue that they are common employers under Section 38 of

Page 4 the Code, nor that all of the other NHL member clubs are engaged in a joint venture in British Columbia, so that they should be considered common employers under the Code. Although the Applicants argued that they should be considered to be "joint employers" within the meaning of the United States National Labour Relations Act, the original panel found that this had no bearing on the question of who was the employer under the Code: "Given the decision not to pursue the argument that Orca Bay and the NHL (or all of its member teams) are common employers, I am proceeding on the basis that Orca Bay is the employer of the Canucks Players under the Code" (para. 142). 13 The Original Decision notes multi-employer certifications are not permitted under the Code (para. 143). The Original Decision then states: The fact that the NHLPA and the NHL have voluntarily negotiated a collective agreement which purports to bind all of the players and teams represented by the NHL and the NHLPA does not necessarily mean that, under the Code, a collective agreement in British Columbia is in force. As noted earlier, the NHLPA is not a trade union recognized by the Code. It is an international union, without status under the Code. Moreover, the collective agreement between the NHL and the NHLPA purports to govern relations between employers and employees outside of British Columbia (in addition to Orca Bay and the Canuck Players). (para. 144) 14 The Original Decision then turns to the question of "what impact, if any, the lengthy history of collective bargaining between the NHL and the NHLPA has on the application for certification" (para. 145). The original panel concludes that the agreement between the NHL and the NHLPA is not a collective agreement within the meaning of the Code, and it cannot stand as a bar to the BC-NHLPA's application for certification (para. 150). The original panel further finds that the unit applied for meets the Board's test for appropriateness set out in Island Medical Laboratories Ltd., BCLRB No. B308/93, [1993] B.C.L.R.B.D. No. 329 (Leave for Reconsideration of IRC No. C217/92, [1992] B.C.L.R.B.D. No. 218 and BCLRB No. B49/93, [1993] B.C.L.R.B.D. No. 72), (1993) 19 CLRBR (2d) 161 ("IML"). 15 In the course of that analysis, the original panel notes that Orca Bay and the NHL, without expressly taking the position that the Board's IML test for appropriateness should not be applied in these circumstances, made submissions that would "create an exception to the IML test where a group of employees is part of a larger, international concern, which has operated over a lengthy period of time as if it were part of a multi-employer or joint employer bargaining unit" (para. 161). The original panel notes that the "basis for this exception, as discussed in detail earlier in this decision, is that it is necessary to permit the NHL to function as a viable sports league" (ibid.). 16 The original panel rejects this argument as a basis for finding that the unit applied for is not appropriate for bargaining, noting that the issue is not the most appropriate bargaining unit but an

Page 5 appropriate bargaining unit:... Undoubtedly, a league-wide collective bargaining unit would have advantages for coordination of collective bargaining. The NHL and Orca Bay argue that such a regime is necessary to ensure that common league rules are established. However, there are other ways that objective can be achieved.... (para. 163) 17 After outlining other ways in which common league rules could be established and maintained (paras. 163-164), the original panel rejects the argument that the application for certification is untimely because it was made in the context of a labour dispute (paras. 165-166). The original panel notes that, in the panel's view, the collective bargaining relationship between the NHL and the NHLPA will not be "inoperably damaged" by the certification of the BC-NHLPA (para. 172). The Original Decision concludes by dismissing the Applicants' objections to the application for certification (para. 173). IV. POSITIONS OF THE PARTIES 18 In their application for leave and reconsideration, the Applicants reiterate many of the arguments they made to the original panel as to why the Board should not certify a separate bargaining unit of Vancouver Canucks players. They submit that the original panel accepted that an international professional sports league must operate under a common set of rules and that the league and its teams are intrinsically interdependent. They submit that it is "obviously antithetical to the interests of sound collective bargaining to fragment a sports league into separate bargaining units". 19 They further submit that, even if it were possible for Orca Bay and the BC-NHLPA to negotiate the same terms as the rest of the NHL, granting a certification which has to be "disregarded to avoid damaging an established, and necessary, league-wide collective bargaining relationship, is contrary to the policy of the Code". They submit that the Canucks on their own "are not actually capable of negotiating the type of collective agreement that is necessary to their participation" in the NHL, and that the nature of the business enterprise requires "an overarching entity (the League) with the authority and ability to bargain those terms on behalf of all teams with all players, under a League-wide collective agreement". 20 The Applicants further submit that, even if Orca Bay and the BC-NHLPA could simply agree to be bound by all of the terms of the NHL-NHLPA agreement, the agreement would be subject to the Code, which would prescribe or constrain some of its terms. Furthermore, it is not assured the BC-NHLPA would simply agree to be bound by the terms of the league-wide agreement, and the Canuck players could disrupt the league-wide bargaining process by taking different positions from the rest of the NHLPA: "As a separate bargaining unit, they have an inordinate level of bargaining power compared to all other players, or teams of players, in the League. That is not consistent with sound collective bargaining compatible with the functioning of the League".

Page 6 21 By way of summary on this issue, the Applicants state: The Original Panel did not conclude that fragmenting the existing league-wide collective bargaining relationship makes sense from a collective bargaining perspective. Rather, it is fair to say that the Original panel ignored the overwhelming policy reasons to deny the certification application, because, in its view, the Board was legally obliged to certify the Canucks because the League does not operate wholly in the province. The NHL and Orca Bay submit that this conclusion is legally wrong... 22 The Applicants then present lengthy argument on why the original panel "erred in law in holding that it was legally obliged" to grant the application for certification. 23 In its response to the application for leave and reconsideration, BC-NHLPA reiterates its argument to the original panel that, as a trade union within the meaning of the Code, it has a statutory right under the Code to apply for certification to represent a bargaining unit of employees, and those employees have a right to be certified if the statutory requirements are met. BC-NHLPA submits in part: The essence of the proposition being advanced by Orca Bay is that a unit of employees which is otherwise appropriate for collective bargaining under the Code becomes inappropriate because some foreign statutory regime may provide a preferable labour relations framework in the eyes of the Employer. 24 BC-NHLPA submits that, if an employer advances an argument that there are alternative bargaining structures that are more appropriate than the one proposed, "then those alternatives must exist under the Code". For example, it submits, an employer cannot suggest the alternative of a multi-employer bargaining unit because such a unit does not exist under the Code. Accordingly, BC-NHLPA submits, the Section 2 obligation to "encourage" collective bargaining cannot be read as applying to collective bargaining under U.S. legislation: "the duty which the legislature has created is to encourage the practices and procedures of collective bargaining under the Code". 25 BC-NHLPA submits that therefore, in determining whether a unit applied for is appropriate, "the Board must only consider the appropriateness of units which may exist under the Code". In doing so, it considers and applies the IML test for bargaining unit appropriateness (as the original panel did). 26 With respect to the argument that granting BC-NHLPA's application for certification "fragments" the existing league-wide bargaining unit, BC-NHLPA submits that the argument "fails to recognize that there is no bargaining unit in existence under the Code which can be fragmented". BC-NHLPA submits that Orca Bay is attempting to elevate the status of the agreement between the NHL and the NHLPA to that of a collective agreement under the Code, which it clearly is not.

Page 7 27 BC-NHLPA takes issue with the Applicants' arguments that the original panel erred in finding the Board was legally required to grant the application for certification as the statutory requirements for certification were met. BC-NHLPA submits Orca Bay is not such a unique employer that the Board should decline to apply the Code to it, despite having the jurisdiction to do so: The largest corporations in America (e.g., Ford and General Motors) have accepted the fact that if they carry on business in a Canadian province they will need to comply with Provincial legislation. Other sports leagues such as baseball and soccer have accepted this. The business of running a hockey club does not create an exception to that legal reality. 28 In their reply, Orca Bay and NHL submit that the "primary argument" of the BC-NHLPA is that the Board is legally precluded from taking into account extra-provincial factors when deciding appropriateness, such as the fact that the Canucks players have long been part of a league-wide collective bargaining structure and that "this is the only way collective bargaining can function properly within the NHL". The Applicants disagree with this position, submitting that the Board can and must take into account its arguments about the effect on the existing league-wide collective bargaining structure of granting the BC-NHLPA's application for certification. 29 Other arguments concerning the application of U.S. labour law are also made at length by both parties, but those arguments are essentially made in support of the legal and policy arguments outlined above. The Applicants do not take issue, in their application for leave and reconsideration, with the Board's jurisdiction to grant the application for certification: they take issue with whether the Board should have exercised its discretion within that jurisdiction to grant the application. V. ANALYSIS AND DECISION 30 An application under Section 141 of the Code must meet the Board's established test before leave for reconsideration will be granted. An applicant must demonstrate "a good arguable case of sufficient merit that it may succeed on one of the established grounds for reconsideration": Brinco Coal Mining Corporation, BCLRB No. B74/93, [1993] B.C.L.R.B.D. No. 97 (Leave for Reconsideration of BCLRB No. B6/93, [1993] B.C.L.R.B.D. No. 29), 20 C.L.R.B.R. (2d) 44. A prima facie case will not suffice; an applicant must raise a serious question as to the correctness of the original decision. 31 In the present case, the Applicants do not take issue with a number of aspects of the Original Decision. For example, they do not take issue with the original panel's dismissal of one of their two objections to the application for certification: the argument that the BC-NHLPA is not a "trade union" within the meaning of the Code. They do, however, take issue with the original panel's dismissal of their objection that the bargaining unit applied for by the BC-NHLPA is "inappropriate". 32 The Applicants also do not take issue with the original panel's conclusion that Orca Bay (not

Page 8 the NHL or any other entity) is the "employer" for purposes of the application for certification. Nor do they take specific issue with the original panel's interpretation or application of the Board's IML test for bargaining unit appropriateness although, as noted in the Original Decision, they effectively argue that that is not the proper or entire test for determining appropriateness in the present case. 33 Finally, although they argue that U.S. labour law does apply to the relationship between the NHL and the NHLPA, they do not argue that this law and relationship constitute a legal impediment to granting the BC-NHLPA's application for certification. Rather, they argue that this context gives rise to overwhelming policy considerations for not granting the application. 34 In effect, the Applicants' position is that, even if the original panel is correct that, considered only from the relatively narrow, "provincial" perspective of the BC-NHLPA as a "trade union" within the meaning of the Code, Orca Bay as the "employer", and the Vancouver Canucks players as the group of employees seeking to be certified under the Code, the IML test for bargaining unit appropriateness is met, the original panel erred in not giving sufficient consideration to the broader, international bargaining context of the NHL and NHLPA when deciding whether to allow the BC-NHLPA's application for certification. 35 The BC-NHLPA, by contrast, submits that a provincial perspective is exactly what the Board is mandated under the Code to bring to the application, and that the Applicants are attempting to rely on improper and irrelevant considerations when they object to the application for certification on the basis that it has implications on the international bargaining context of the NHL and NHLPA. The Board has no jurisdiction to grant an application for certification on any terms other than under the provincial legislation; however, where those terms are met, the employer's preference for another bargaining unit configuration in another jurisdiction cannot stand as a bar to the Board exercising its jurisdiction under the Code. 36 In essence, the argument comes down to this: is it proper or improper for the Board to consider the implications on the bargaining relationship between the NHL and the NHLPA of granting the certification applied for by the BC-NHLPA? If it is improper for the Board to consider those implications, then there is little or no basis on which to disturb the original panel's conclusion that, on the Board's established test for bargaining unit appropriateness, the bargaining unit applied for is "appropriate" within the meaning of Section 22(1) of the Code. If, on the other hand, it is proper for the Board to consider those implications, then the Applicants' argument that it would be inappropriate to grant the bargaining unit applied for, given the implications this would have for the ongoing bargaining relationship between the NHL and the NHLPA, must be considered. 37 This argument is dealt with to some extent in the Original Decision. The original panel reasons that, as rational, self-interested actors, both Orca Bay and the BC-NHLPA would be motivated to bargain in a way that does not disrupt the existing league-wide collective bargaining relationship. The Canucks players would be unlikely to take hard bargaining positions because the "harsh reality" is that "while they cannot play without a league, the NHL can continue to operate

Page 9 without a franchise operating in Vancouver" (para. 163). By contrast, "Orca Bay is capable of bargaining hard to ensure that its franchise relationship with the NHL is not adversely affected" (ibid.). 38 The Original Decision further states that another way the "common rules" governing the league's collective bargaining relationship can be maintained is through the Standard Player's Contracts (para. 164). The Original Decision concludes on this point: I am not prepared to prejudge the positions that the parties may take in collective bargaining. Any difficulties can be addressed if they arise through the unfair labour practice and duty to bargain in good faith provisions in the Code. (para. 164) 39 The original panel notes that the approach it takes in this case is "similar to that taken by the Ontario Labour Relations Board ("OLRB") in the Umpires Decision" (para. 170). At para. 171, the Original Decision quotes a lengthy passage from OLRB's Umpires Decision, [1995] O.L.R.D. No. 1543, concluding as follows at para. 172: Like the OLRB, I am troubled that this application appears to be only "a small slice of the collective bargaining pie" and that the NHL and the NHLPA appear to have developed a relatively functional collective bargaining relationship over a lengthy period of time. However, I agree with the comments of the OLRB to the effect that the local collective bargaining (between the Canucks Players and Orca Bay) will undoubtedly be influenced "by much broader American-based collective bargaining imperatives". They will also be governed by the reality that the NHL can exist without the Canucks Players but the Canucks Players cannot realistically exist without a league. That does not mean, however, that Orca Bay and the BC-NHLPA will have nothing over which to bargain. The collective bargaining dynamic can only be certainly known in the fullness of time. In reaching my decision, I am satisfied that the collective bargaining relationship between the NHL and the NHLPA will not be inoperably damaged by the certification of the BC-NHLPA (even if that were a legitimate concern, something about which I have considerable doubt.) 40 For the following reasons, we find the potential effect or implications of granting the application for certification on the established and ongoing league-wide bargaining relationship between the NHL and the NHLPA is a proper consideration or "legitimate concern" in deciding the appropriateness of the bargaining unit applied for in this case. Also, for reasons which follow, and unlike the original panel, we are not persuaded that the unit should be found appropriate notwithstanding the potential effect or implications that granting the application for certification would have on that relationship. 41 The issue in this case is the appropriateness of the proposed bargaining unit. The Board's

Page 10 approach to appropriateness is set out in IML. In respect to an initial application for certification, there are four factors by which the appropriateness of the proposed unit is determined: 1. similarity in skills, interests, duties, and working conditions; 2. the physical and administrative structure of the employer; 3. functional integration; and 4. geography. (IML, p. 180) For the purposes of this case, the essential considerations are captured in the following passages:... So although similarities in skills, interests, duties and working conditions remain at a common sense level a factor in community of interest, it may be of less help in drawing a rational and defensible line; its inherent flexibility may prove useful but provide only limited conceptual guidance. The remaining criteria essentially concern the nature of the employer's organization. And it is really the nature of the employer's place of business that is the crucial factor in determining appropriateness. Once again, labour relations experience and common sense dictate that the structure of the employer physically, administratively, and operationally is really the evidentiary basis upon which the appropriateness of the bargaining unit is determined. (IML, p. 181) 42 In our view, the structure of the employer in the present matter is at the heart of the case. The BC-NHLPA says that we "must only consider the appropriateness of units which may exist under the Code" (see para. 25 above). The Applicants urge us to take a broader, contextual view of the employer having regard to its dependency on the overall league structure and the long term labour relations which have been developed as part of that overall structure. 43 The issue before us does not involve the Board's jurisdiction (which was conceded), sovereignty (which follows jurisdiction), legal bars (which do not arise), or the need for there to be inoperable damage (Original Decision, para. 172). 44 In respect to the issue before us we find that from a practical labour relations perspective there are compelling reasons not to take a narrow view, both in terms of the unique facts in the case and from the perspective of what should be attempted to be achieved through the labour relations scheme existing under the Code. 45 Determining bargaining unit appropriateness lies at the heart of the exercise of the Board's labour relations judgment and is quintessentially a policy determination, particularly in respect to a context as unique as the present matter. That exercise of judgment is also highly contextual. Further, as former Chair Lanyon explained, the conduct of the parties is a critical aspect of context in labour

Page 11 relations matters: As a general comment it is hard to imagine when the conduct of a party in a labour relations dispute would not be relevant. Labour relations is not simply the interpretation of a collective agreement or of statutory language. Labour relations policy is, at least in part, concerned with the establishment of normative standards of conduct between management and labour. This role imbues all our interpretative tasks, both contractual and statutory. (B.C. Rail Ltd., BCLRB No. B128/93 [1993] B.C.L.R.B.D. No. 150 (Reconsideration of IRC No. C152/92, [1992] B.C.L.R.B.D. No. 152 ), p. 14) 46 In terms of its history, labour relations in British Columbia has been at least as adversarial as the labour relations in any other jurisdiction in North America. That over-arching characteristic has caused a growing concern about the viability of traditional labour relations in B.C. That concern has resulted in steps to initiate a legislative reform of our labour relations, which has been a bipartisan effort. The underpinnings of that reform initiative guides our approach in this case. 47 Recognition of the need to look at labour relations through the prism of a different labour relations paradigm (i.e., from a broader perspective) began with the 1992 mandate for the reform of labour relations. The thrust of that mandate was to "... [address] the promotion of harmonious and stable labour/management relations to ensure that the Province maintains and enhances its competitive position in the world marketplace": Recommendations for Labour Law Reform, Sub-committee of Special Advisors: John Baigent, Vince Ready, and Tom Roper, September 1992 (the "Report"), p. 4. A key aspect of the mandate was to have labour relations laws which would promote "a climate conducive to the encouragement of investment": ibid. 48 The Report made a number of important recommendations which were ultimately reflected in specific amendments to the Code in 1993. A critical part of those reforms is reflected in what is now Section 2(d) of the Code: 2. The board and other persons who exercise powers and perform duties under this Code must exercise the powers and perform the duties in a manner that.........

Page 12 (d) encourages cooperative participation between employers and trade unions in resolving workplace issues, adapting to changes in the economy, developing workforce skills and developing a workforce and a workplace that promotes productivity,.... 49 In 2002 there was further legislative reform of the Code, part of which again emphasized the need to encourage a different perspective to be applied to labour relations matters. It made the Section 2 principles of the Code mandatory considerations for the Board, adding, among other provisions, Section 2(a) and (b): 2. The board and other persons who exercise powers and perform duties under this Code must exercise the powers and perform the duties in a manner that (a) (b) recognizes the rights and obligations of employees, employers and trade unions under this Code, fosters the employment of workers in economically viable businesses,.... In our view, these amendments sought to further the recommendations in the Report and 1993 Code amendments. 50 In a series of decisions beginning in 2003, the Board set out a framework to give effect to a new approach to labour relations flowing from the 1993 and 2002 amendments to the Code. 51 For example, in Campbell Goodell Traynor Consultants, BCLRB No. B288/2003, [2003] B.C.L.R.B.D. No. 288, the Board identified important issues that it saw as being necessary to be addressed in labour relations in B.C., i.e., enhancing productivity and competitiveness; ensuring the development of skilled, educated, flexible work forces; and developing innovation and efficiencies. 52 In Forest Industrial Relations, BCLRB No. B312/2003, [2003] B.C.L.R.B.D. No. 312, the Board concluded that Section 2 of the Code reflects a statutory recognition of the need to find ways to enhance productivity, competitiveness and growth. To that end, the Board posited that the Code principle of cooperative participation and other similar problem solving approaches were important mechanisms for achieving the Section 2 objectives. 53 In Health Employers Association of British Columbia, BCLRB No. B393/2004, [2004] B.C.L.R.B.D. No. 394, the Board recognized that the joint labour-management consultative processes contemplated under Section 53 of the Code are important problem-solving mechanisms to develop creative approaches and solutions to issues like productivity, efficiency, ways to adapt to changes in the economy, and creating and maintaining a skilled, flexible work force.

Page 13 54 The essence of this new approach can be captured in two basic concepts - the need to: (1) be competitive, and (2) work together. For their mutual benefit, employers and unions are to be encouraged to work together constructively in important areas of shared interest. 55 This approach goes beyond simply promoting structures which are based on an adversarial relationship. The judgment of the legislature in British Columbia has been that modern labour relations require more than that. 56 In furtherance of that initiative, the Board has been attempting to encourage the development of new forms of labour relations. An example of this can be found in a dispute regarding the re-opening of a mine in British Columbia. Under the more traditional approach to labour relations initially being followed by the parties, the re-opening of the mine was in jeopardy. However, with the broader, amended Code provisions there was a basis to ensure that the mine re-opened and thereby would provide critical jobs for the employees, the local community, and the province. As was explained by the Board in that decision: The re-opening of the mine as a viable business would be in the interests of local workers who need the jobs the mine would provide, the union who will represent those employees, the Employer, and the local community which will benefit from the employment and the economic multiplier effect of it re-opening. Section 2 directs the Board to consider all these interests in interpreting and applying the provisions of the Code. Labour relations under the Code is intended to further, balance, and contribute to the success of these interests. In the Code, collective bargaining is recognized as an important societal institution which should be a vehicle for success, not failure. Labour relations under the Code needs to be a system which drives and achieves successful outcomes. (Taseko Mining Ltd., BCLRB No. B229/2004, [2004] B.C.L.R.B.D. No. 230 (Leave for Reconsideration of BCLRB No. B218/2004, [2004] B.C.L.R.B.D. No. 219), paras. 12-13). 57 A broader approach to labour relations, which includes focusing on problem solving, can be found in a number of other Board decisions as well. 58 Turning to the matter before us, if we were to adopt the narrow approach to appropriateness advocated by the BC-NHLPA, we find we would miss the larger contours and significance of the issue as well as what the parties themselves have been able to accomplish. First, it is not in dispute that for decades the NHL and NHLPA have been able to agree upon means and forums within

Page 14 which to resolve their issues. In respect to the focus in the current Code on cooperative problem solving, that is a significant accomplishment within a unique and difficult context. That context is well-described in paras. 17 to 39 of the Original Decision. Paragraph 58 of the Original Decision notes that this "league-wide bargaining structure was developed by consent" of the parties without a certification being granted by any labour tribunal in any jurisdiction. 59 The ability of the parties to agree on means and forums for dispute resolution ran aground somewhat in the recent round of collective bargaining. The present case is, in fact, the prime, remaining example of that difficulty. There were similar applications in other jurisdictions, but they were withdrawn. 60 Ultimately, however, the NHL and NHLPA were once again able to reach an agreement, the current CBA, in concluding the last round of bargaining. From the broader perspective of the current Code, that resolution in the CBA presents a second point of significance. It reflects a joint recognition and focus on the need to produce mutual success through enhancing competitiveness, similar to the objectives in the Code. 61 A key aspect of the CBA is that the parties (i.e., the NHL, the owners, and the NHLPA, the players) have recognized areas of mutual interest and, in effect, partnered cooperatively in order to try to grow the overall business to their mutual benefit. That approach can be seen in the salary cap structure: see para. 33 of the Original Decision for that structure. If the parties are jointly successful in growing the business, it will lead to two things: potentially larger profits for the owners and potentially larger salaries for the players under a higher salary cap. 62 That is consistent with Section 2 principles and in particular the 1993 amendment to what is now Section 2(d) of the Code, which encourages the "cooperative participation" between the parties, and the 2002 Section 2(b) amendment of fostering the "employment of workers in economically viable businesses". 63 The question in the present matter is properly set out in paras. 112 and 135 of the Original Decision. Essentially it is whether the unique facts in this case militate against a determination that the proposed bargaining unit is appropriate. 64 We find that the facts are well summarized in the context of this case in para. 79 of the Original Decision: At the outset of the hearing, the NHL and Orca Bay withdrew their objection that this Board did not have jurisdiction to hear the BC-NHLPA's certification application. They concede that provincial law, specifically the Code, governs the BC-NHLPA's application for certification. Despite this concession, the NHL and Orca Bay argue that the parties, by their conduct over the past three decades, have established a collective bargaining system that has the following characteristics:

Page 15 1. It is premised on a league-wide framework, i.e. collective bargaining governs all of the NHL member teams (represented by the NHL) and all of the players for those teams (represented by the NHLPA); 2. It is a mechanism, established through negotiation with the players, to determine a common set of rules under which the NHL member teams and their players operate; 3. It is a voluntary recognition relationship that includes a course of conduct whereby disputes relating to the collective bargaining relationship are dealt with in the United States, under United States labour laws;[.] 65 The Board's approach to determining appropriateness is explained in IML. As IML explains:... it is really the nature of the employer's place of business that is the crucial factor in determining appropriateness... labour relations experience and common sense dictate that the structure of the employer physically, administratively, and operationally is really the evidentiary basis upon which the appropriateness of the bargaining unit is determined. (IML, p. 181, see also para. 41 above) As well, as with all Code issues and determinations, this question needs to be decided within the broader framework and approach of the Code as amended in 1993 and 2002. 66 Looked at from that perspective, we have serious reservations about the appropriateness of the applied for bargaining unit given the unique nature of the league structure, with its corresponding labour relations between the NHL and NHLPA. 67 The nature of that structure can be summarized as an interdependent joint enterprise with a common set of rules. The characteristics are described in the Original Decision (see, for example, paras. 19, 32-35 and 79) and in the submissions provided by the NHL in this application (see, for example, para. 18). None of those characteristics are disputed (some examples are the Commissioners' authority to impose discipline; league-wide rules regulating the transfer of players between various clubs as well as minor league affiliates; league-wide salary arbitration; league-wide draft and waiver rules; league approval of player contracts; league-wide restrictions on maximum players' salaries; a centralized league-wide schedule, etc.). These league-wide characteristics are reflected in the CBA. 68 Within that context, the longstanding ability of the NHL and the NHLPA to self-govern their relations through the CBA and agree upon forums and means to resolve their disputes is significant. We believe that in light of the nature of the structure, functioning and history of the existing regime, we should be reluctant to interfere with it by establishing another regime which is by definition, prima facie, a fragmenting and potentially competing, inconsistent structure.

Page 16 69 Access to collective bargaining and industrial stability are the fundamental principles driving the Board's approach to appropriateness: IML, p. 192. In the present matter, the Canucks players have access to collective representation and bargaining through the NHLPA, though not under a Code structure. That access to collective bargaining and representation through the NHLPA has produced stability for decades. The most noteworthy exception is the recent round of bargaining with its lengthy lockout. However, on balance, the NHL-NHLPA relationship has produced both access to collective representation and bargaining and industrial stability. 70 In the most recent CBA, it has also produced an innovative approach which is consistent with critical principles in the amended Code here in British Columbia. As noted, the salary cap structure with its focus on the players and owners in effect partnering to jointly benefit from growing the business is consistent with key principles in the amended Code. That causes us to have further reluctance in respect to potentially interfering with the existing NHL-NHLPA structure. 71 With respect, we do not agree that the NHL league structure and the NHL-NHLPA relations are analogous to the branch plant situation referenced in the Umpire's Decision at para. 171 of the Original Decision. Both the factual circumstances and jurisdictional difficulties are distinguishable. There is an operational and governance complexity in relation to the NHL league structure which is quite distinct from a branch plant situation. As well, jurisdiction in respect to the labour relations of a branch plant under the Canadian constitution is clear and well established. As noted at length in the Original Decision, that is not true of the league structure at issue in the present matter. 72 Also with respect, we do not agree with the view in the Original Decision that the present certification application did not arise during a labour dispute in British Columbia: Original Decision, para. 165. That determination is in fact an example of "an overly technical view" which the original panel worries about at an earlier point in the Original Decision (para. 148). The Canucks, their owners, players, and fans, along with the rest of the league, lost an entire season during the last round of collective bargaining due to the difficulties in bargaining and the lockout. That was a labour dispute. 73 That last point leads to our determination in this matter. As we noted earlier, appropriateness is uniquely a policy determination and exercise of judgment under the Code, but one which is also highly contextual. Appreciating the context includes considering the conduct of the parties. 74 In that regard, given the decades long agreement on the NHL-NHLPA structure, and its significance in the difficult and unique circumstances we have referenced, there should have been proper notice of an intent to withdraw from this structure. In that regard, we do not find it to be appropriate for the BC-NHLPA, whose "parent body" is the NHLPA (Original Decision, para. 118), to in effect have departed from the agreed upon NHL-NHLPA bargaining structure without notice during the last round of bargaining. In respect to this point, we accept the position summarized in paras. 84 and 88 of the Original Decision: The NHL and Orca Bay argue that it is untimely for the Canuck Players to

Page 17 withdraw from a league-wide collective bargaining structure during the course of a labour dispute. The NHL and Orca Bay note that the Canuck Players, despite their application for certification through the BC-NHLPA, bargained under the banner of the NHLPA for a new six year collective agreement, with all other NHL players. It says that during the term of this new six year collective agreement, the Canuck Players could put the NHL on notice that they are withdrawing from the league-wide bargaining structure at the conclusion of the collective agreement.... The NHL and Orca Bay do not argue that the players are required forever to continue to operate under American law. To the contrary, as noted earlier, they submit that either the NHL or the NHLPA could give the other notice of its desire to withdraw from that arrangement. Counsel for the NHL and Orca Bay put the argument this way in his written submission: [Either party could give the other] appropriate notice of its changed position, and the parties have an opportunity to bargain over it. Thus if the NHLPA is truly of the view that the NLRA should no longer apply to Canadian teams (a position it has never taken in any NLRB proceeding) and/or that it no longer wants to have a single collective bargaining regime and a single collective agreement applicable to the League as a whole, it should give timely notice of this to the NHL so that the issue can be properly addressed between the parties. (para. 41 of Memorandum of Argument of the NHL and Orca Bay Appropriate Bargaining Unit Issue) 75 In summary, we find that it is proper for the Board to consider the implications on the bargaining relationship between the NHL and the NHLPA of granting the certification applied for by the BC-NHLPA. When those implications are considered, we find that it is inappropriate to grant the application sought. The Original Decision concludes that the collective bargaining relationship between the NHL and the NHLPA will not be "inoperably damaged" by the certification of the BC-NHLPA; however, we find the Applicants need not establish inoperable damage in order to persuade us that certifying a bargaining unit of Canucks players only is inappropriate, when considered in the operational and labour relations context of the employer, Orca Bay. 76 In saying this, we recognize and accept that the employer of the Canucks players is Orca Bay, not the NHL. However, the nature of Orca Bay's organization - the structure of its business physically, administratively and operationally - persuades us that certifying a bargaining unit

Page 18 consisting of Canucks players is inappropriate within the meaning of s. 22(1) of the Code, particularly given the timing and context of the application. It is not consistent with Code principles, for the reasons outlined in this decision. 77 Orca Bay is the employer, but Orca Bay itself is an integral part of the NHL, just as the BC-NHLPA is an integral part of the NHLPA, and the Canucks players, as a team, are an integral part of the hockey league within which they play. All three elements - the employer Orca Bay, the union BC-NHLPA, and the employee Canuck players - are well served by their current league-wide bargaining structure. This is a crucial factor in our finding that the applied for bargaining unit is inappropriate. If this circumstance were to change, such that either or both parties were no longer well served by the existing bargaining structure, it may be that we would have to revisit our decision. However, in light of the present circumstances, we find that the bargaining unit applied for is inappropriate. 78 As a result of the above, the application for reconsideration is granted and the Original Decision and the certification flowing from it are cancelled. B. MULLIN, CHAIR M. FLEMING, ASSOCIATE CHAIR P. TOPALIAN, VICE-CHAIR cp/e/qlemo/qlhcs/qlbdp/qlmxl

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