The Labour Relations Board ("LRB") has overturned a decision that would have allowed the players' union to certify the Vancouver Canucks. The decision recognizes the importance of structuring bargaining units that reflect the parties' particular circumstances and the practical realities.

The NHL is a professional hockey league with teams located across Canada and the United States. The NHL Players' Association ("NHLPA") was formed in 1967 to represent the players in the NHL. The NHLPA was voluntarily recognized, and successive collective bargaining agreements ("CBA") have governed the relationship between the NHL and the NHLPA since 1975.

The Canucks withdrew their objection that the LRB did not have jurisdiction to hear the application and conceded that provincial law, including the Labour Relations Code (British Columbia) ("Code"), governed that application. However, the Canucks argued that a bargaining unit consisting of players of a single NHL team would not be an appropriate unit for collective bargaining, allowing the certification application would have negative ramifications on the league-wide collective bargaining structure that the Canucks' players had been a part of for decades. The Canucks argued that their players had voluntarily chosen to be part of a league-wide collective bargaining relationship, and that it was untimely and improper to withdraw from that bargaining structure during the course of a labour dispute.

The original panel concluded that the BC-NHLPA was a trade union, that Orca Bay was the employer, that the agreement between the NHL and the NHLPA was not a collective agreement within the meaning of the Code, and therefore could not stand as a bar to the certification application.

The original panel further held that the unit applied for met the test of appropriateness set out in Island Medical Laboratories Ltd. decision.

In its appeal decision, the LRB overturned the original panel. It had serious reservations about the appropriateness of the bargaining unit, given the unique nature of the league structure with its corresponding labour relations between the NHL and the NHLPA. The appeal panel was reluctant to interfere with the established bargaining structure by creating another regime which would, by definition, fragment and compete with the existing regime. There was no need to be concerned about access to collective bargaining or in­dus­trial stability, given the collective representation and bargaining through the NHLPA, although that was not under the Labour Relations Code structure. 

In assessing the application, the Labour Relations Board noted:

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.1

The LRB considered the implications on the bargaining relationship between the NHL and the NHLPA in granting certification to the union for the Canuck' players and held that, considering those implications, it was inappropriate to grant the application. It found that certifying a bargaining unit consisting of the Canucks' players was inappropriate within the context of Section 22(1) of the Code, particularly given the timing and the context of the application. As a result, it was not consistent with the Code principles and the application was dismissed. Accordingly, the LRB held that the bargaining unit applied for was inappropriate and the application for reconsideration was granted. The original decision and the certification flowing from it were therefore cancelled