Effective Arbitration Keeps Trains on Track


Effective Arbitration Keeps Trains on Track

The first regularly scheduled railway service in Canada commenced in 1836 on a piece of track 16 miles long to facilitate commerce between Montreal and New York. The rail sector has a 75% union density and from its early days required a form of dispute resolution for labour matters.

In 1918, the Canadian government created the Canadian Railway Board of Adjustment to minimize the risk of labour interruptions during the war effort. Wages and hours of work were incorporated into existing agreements for rail workers and disagreements were decided by the Railway Board.

This bipartite Board remained in operation until 1964. Their decisions were provided without reasons and formed precedents. An increasing number of railway disputes were becoming intractable within the two-party Board of Adjustment system. Difficult cases were left unresolved and merely “referred back to the parties” for handling.

In 1965, CN, CP and four major unions representing railway workers signed a memorandum of agreement (MOA) establishing the Canadian Railway Office of Arbitration (CROA). The MOA established an office in Montreal, named a permanent arbitrator and a general secretary to manage the affairs of the office.

The CROA was guided by the parties’ mutual concern for:

  1. Industry expertise and consistency of arbitration awards (primary concern).
  2. Minimizing cost.
  3. Efficient and expeditious processing of grievances.

CROA has issued about 3,700 awards of which only five or six have been judicially reviewed.

The CROA approach has been described by some as a more consensual and less adversarial approach to arbitration.

One of the keys to CROA’s success seems to be the obligation in the collective agreement and MOA for the parties to negotiate a joint statement of issues, which compels the parties to identify issues to be presented to the Arbitrator, thereby avoiding allegations of surprise and the related risk of adjournments and delay. Thus, less time is spent determining facts and more focus is placed on arguments. The parties have developed a culture focused on the issues during pre-arbitration meetings to narrow issues and attempt to resolve matters.

Unlike ad hoc arbitration, having an arbitrator familiar with the parties and the unique issues that are present in railroad disputes provides for greater predictability and more consistent decisions.

The arbitrator schedule is set well in advance. Hearings are scheduled for three days every month except August; the second Tuesday; Wednesday and Thursday are reserved as regular hearing days, essentially on a first-come first-served basis and dismissal cases will take priority on request.

Minimal use of witnesses makes it possible for the arbitrator to hear 5-7 cases a day. Hearings generally take 1-2 hours and range from minor discipline to terminations, collective agreement interpretation cases from wage disputes to work jurisdictions and contracting out, which can have significant financial implications for the parties. A party can ask the arbitrator to allow a separate statement of issues. Witnesses are seldom called, and cases are pleaded without lawyers 90% of the time.

CROA provides written decisions, which are normally 2-4 pages in length but sometimes longer. Decisions are required within 30 days but are typically issued the following week.

This expedited and consensual approach offers dramatic cost savings and much shorter timelines for arbitration decisions that do form precedents with the same quality as ad hoc arbitrations. The set schedule means there is no delay agreeing on an arbitrator or finding someone who has availability within a reasonable time.

CROA’s office maintains a permanent secretary that deals with 12 employers and seven trade unions representing some 45,000 employees, typically hearing 150 grievances a year.

While not perfect, true to the original intention of arbitration, CROA continues to offer a fast, responsive, effective and affordable way to resolve disputes.