The Arbitration Process in the Canadian Railway Industry
The Canadian Railway Office of Arbitration is a forum for the binding resolution of industrial disputes in the Canadian railway industry which arises out of an agreement between multiple unions and railway companies to provide for adjudication of otherwise unresolvable issues between one or more of the members of the Office.
All collective agreements within the federal jurisdiction in Canada contain specific clauses which provide for arbitration. Arbitration therefore can be described as a voluntary process that is quasi-judicial in nature and it is designed to adjudicate and determine all disputes arising from the application of the terms of a collective agreement between any two or more members of the Office.
Established in 1965, the Canadian Railway Office of Arbitration (CROA) is a permanent institution established by railways and trade unions to provide a regulated form of expedited arbitration to resolve grievances arising under collective agreements within the railway industry. The Office is administered by a joint committee of employers and unions who are responsible for its joint funding. The members of the Administrative Committee of the Canadian Railway Office of Arbitration are:
D. J. Bujold
Department Head - U.S.W.A.G. D. Housch
Vice-President, Brotherhood of Maintenance of Way EmployeesR. Johnston
President, National Council 400, National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-TCA)W. G. Scarrow
Sr. Vice-President, United Transportation UnionG. Hallé
Canadian Director, Brotherhood of Locomotive EngineersR. J. Dixon
Vice-President Labour Relations and Employment Legislation, Canadian National RailwaysM. G. DeGirolamo
Assistant Vice-President, Industrial Relations, Canadian Pacific Railway Company
The CROA employs a permanent General Secretary who is responsible for the day to day administration of its Office, located in the Sun Life Building, 1155 Metcalfe Street in Montreal, Quebec. The CROA also retains a single arbitrator on the basis of a renewable one year contract. Since the inception of the Office the following persons have held the position of arbitrator, in chronological order:
Judge J. A. Hanrahan
J. F. W. Weatherill
D. H. Kates
M. G. Picher
The arbitration of grievances follows a substantially different procedure than is commonly used elsewhere in labour arbitration in Canada. The rules of the Office require that parties present a written brief which outlines the facts of the incident in question and the respective positions and arguments of the parties, with supporting authorities and documentation in the form of exhibits. Each party reads its brief at the hearing, and has the opportunity to make rebuttal submissions to the other party's brief. While the memorandum of agreement establishing the Office contemplates the possibility of witnesses being called, witnesses are generally called only if the briefs disclose a factual dispute on an issue material to the resolution of the grievance, where one of the parties wishes the arbitrator to have something more than the written record. As a result, the use of witnesses is kept to a minimum, and the problem of extensive exploratory evidence through sworn oral testimony, much of which may ultimately be irrelevant or unhelpful, is substantially avoided.
Discipline cases are generally substantially more expedited under the railway arbitration system. That is so, in substantial part, because under the collective agreements which are administered in the CROA employees are generally protected against discipline until such time as the employer company conducts a fair and impartial investigation into the incident which may give rise to discipline. The presence and participation of the union at the disciplinary investigation is generally guaranteed by the terms of the collective agreement, and both parties therefore emerge from the investigation process with a written record of the statements of various witnesses, including employees and supervisors, relating to the incident in question. There is, in the result, a written record of statements taken by the company during the course of the investigation, the whole of which is filed before the arbitrator as an exhibit in a disciplinary case. The filing of the disciplinary hearing record (generally referred to as the Q&As or Questions and Answers) substantially reduces the need for the actual testimony of witnesses in the arbitration hearing. In many instances the parties are content to draw to the arbitrator's attention the statements made by the witnesses during the course of the investigation procedure, indicating that their evidence at the arbitration hearing would be substantially the same. The arbitrator is nevertheless left with the discretion to request that one or more witnesses in fact be called, a discretion which is most frequently exercised in situations where there is an obvious conflict of the testimony of two or more persons, or the resolution of that conflict is essential to the disposition of the grievance.
The CROA sits three days of each month, except August. The format of the arbitration award is also expedited, and may sometimes be as brief as a one or two page decision. Decisions are final and binding, and serve precedents for other CROA arbitrations. All awards are printed and disseminated to the members of the Office and gain general currency in the field, so that they are followed in the administration of collective agreements and the resolution of disputes on a day to day basis. Close to three thousand arbitrations have been handled by the Office in the thirty-three years of its existence.
An important aspect of the efficiency of the CROA involves the active participation of both and union representatives and management staff in the presentation of cases before the arbitrator. While the rules of the CROA do allow parties to use legal counsel, the majority of cases are presented without recourse to legal counsel. Where lawyers are utilized, they are generally familiar with the expedited format of CROA proceedings and fashion their presentations accordingly.
A more detailed explanation of the workings of the Canadian Railway Office of Arbitration can be found in an article of Arbitrator Michel G. Picher entitled "The Canadian Railway Office of Arbitration: Keeping Grievance Hearings on the Rails", published in Labour Arbitration Yearbook, Volume One (1991) - Kaplan, Sack and Gunderson, eds.
A comparison study of the CROA to other forms of arbitration may be found in an article of A.E. Button entitled "The Canadian Railway Office of Arbitration Alternative: A comparison of Models of Grievance Arbiration", School of Industrial Relations Research Essay Series No. 29 (1990), published by Queen's University, Industrial Relations Centre.
This article is from the Canadian Railway Office of Arbitration