Weber Delay?

October 30, 2015"One Law for All": Has Weber v. Ontario Hydro Transformed Collective Agreement

Administration and Arbitration in Canada?

Professors Kevin Banks, Richard Chaykowski and George SlotsveCentre for Law in the Contemporary Workplace

Queen’s University

The Problem

Research demonstrates a steady increase between the 1970s and early 2000s in the average time from initiating a grievance to the rendering of an arbitration award in all Canadian jurisdictions studied.

A Challenge to the System

Ontario’s recently retired Chief Justice, has argued that “the present system of grievance arbitration can be slow, expensive and detached from the realities of the workplace”, “has lost its course, has lost its trajectory, has lost its vision”, and “is at risk of becoming dysfunctional and irrelevant”.

Weber and the changed legal environment

• Increased complexity of legal issues facing arbitration due to the expansion of arbitral jurisdiction:– Weber jurisdiction: torts, pension and benefit plans,

Charter of Rights– Human rights (anti-discrimination) and other statutory

matters

• Ambiguity in the scope of arbitral jurisdiction.

A Framework of Hypotheses

A. Exogenous constraints (Weber and a radically changed environment):

1. proportion of cases raising numerous or complex legal or factual issues

2. proportion of cases raising jurisdiction issues

B. Behaviour of Arbitrators1. Procrastination2. Lengthy and legalistic decision-making3. (Defaulting to non-management of proceedings)

A Framework of Hypotheses

C. Institutional Characteristics of the Parties1. public vs private2. government vs health care vs education

D. Legitimate Preferences of the Parties1. Risk-averse approach to ensuring high standards of

fairness, high quality of decision, and acceptability of decision

2. Allowing time for healing

A Framework of Hypotheses

E. Incentive or coordination problems among the parties1. Pursuit of tactical or political advantage2. Lack of information on more efficient processes3. Costs associated with moving to more efficient processes

a. up-front costs of negotiation and establishmentb. up-front costs of clearing backlogsc. potential for wasted investment in early fact-finding

and disclosure4. Lack of trust may heighten risks or perceived risk of net

loss

Methods

• Detailed legal subject matter coding of all grievance arbitration awards in Ontario Labour Arbitration Awards, 2010

• Record time from grievance or event to first hearing, first hearing to last hearing, last hearing to award, and number of hearing days

• Process variables coded include details on arbitrator/board, party representatives, whether expedited procedures or agreed statements of fact were used, and length of award

• Coding government, health care, education and other employers• Proxy for busiest arbitrators • Consent awards and interim awards excluded

What this enables us to measure

• At what stage delay tends to arise, and

• What institutional, legal or procedural factors tend to cause it.

What this enables us to infer directly

• The probable extent of any effects of changed legal environment (A1 and A2)

• The probable extent of any effects of arbitrator behavior (B1 and B2)

• The relative importance of party institutional characteristics (C1 and C2)

• The relative importance of risk-averse procedural choices (D1)

What this enables us to infer indirectly

The likely relative importance of the combined effect of party priorities, resource constraints, and incentive or coordination problems.

Sector: P

rivate

Sole

Triparti

te

Sector: G

overnment, H

ealth &

Education

Sole

Trip

artite

0

10

20

30

40

50

60

70

80

90

100

Industry Profile of Cases, BCS (2015) and Picher and Mole (1991)

BCS Entire Sample M&P Entire Sample

%

Juris

diction

Admissibilit

y of E

vidence

Matt

er of P

roce

dure

Human Rights

or Oth

er Disc

riminati

on

Human Rights

is a D

isabilit

y Issu

e

Disabilit

y Issu

e or Dru

g or Alco

hol Dependence

Non-Human

Rights

Legis

lation

Pension Plan

Benefit or W

elfare

Plan

Canad

ian Charte

rTo

rt

Esto

ppel

Interp

retati

on of Colle

ctive Agre

ement

Discharg

e for D

isciplin

e

Other D

isciplin

e

Assignment o

r Sch

eduling o

f Work

Seniorit

y

Wage

or Relate

d Benefits

Union Rights an

d Liab

ilities

Non-Disc

iplinary

Term

ination

0.00

2.00

4.00

6.00

8.00

10.00

12.00

14.00

16.00

18.00

BCS Approximate Distribution of Cases by Subject

Hearing Time Award Time Total Time Event to First Hearing Time

0

50

100

150

200

250

300

350

400

86.34

49.36

136.2

307.02

BCS Time Lapse, Discipline and Non-Discipline

Average, Entire Sample Disciplinary Awards Non-Disciplinary Awards

Human Righ

ts or O

ther Disc

riminati

on

Pensio

n Plan

Benefi

t or W

elfare

Plan

Interpret

ation of C

ollecti

ve Agre

emen

t

Discharg

e for D

isciplin

e0

10

20

30

40

50

60

70

80

90

% with hearing time of 30 days or less% with hearing time of 60 days or less% with hearing time of 90 days or less% with hearing time of 120 days or less

Time to Complete Hearings

0

10

20

30

40

50

60

70

80

90

% with hearing time of 30 days or less% with hearing time of 60 days or less% with hearing time of 90 days or less

Post-hearing time to Render Award

Start to First Hearing_t Coef. Robust Std.

Err.Z P>|z| [95% Conf.

Interval]T-stat

Jurisother .8942973 .3885852 2.30 0.021 .1326842 1.65591

discd -.6028431 .2625858 -2.30 0.022 -1.117502 -.0881843

gov .451927 .1372988 3.29 0.001 .1828263 .7210277

expedited -.7939438 .1461618 -5.43 0.000 -1.080416 -.507472

tripart .6172616 .2364494 2.61 0.009 .1538292 1.080694

First Hearing to Last Hearing_t Coef. Robust Std.

Err.Z P>|z| [95% Conf.

Interval]T-stat

Charter 1.957558 1.08435 1.81 0.071 -.1677283 4.082845

cba 1.510866 .6769155 2.23 0.026 .1841363 2.837596

discd 1.237125 .6036845 2.05 0.040 .0539256 2.420325

other 1.892718 .7240709 2.61 0.009 .4735653 3.311871

gov 1.038742 .316652 3.28 0.001 .4181155 1.659369

urep .7115691 .3274369 2.17 0.030 .0698047 1.353334

furep -.4712984 .2642194 -1.78 0.074 -.989159 .0465621

afact -1.088791 .2812563 -3.87 0.000 -1.640043 -.5375387

busy arb -.0398964 .0234684 -1.70 0.089 -.0858937 .0061009

naward .0753464 .0195785 3.85 0.000 .0369732 .1137197

Last Hearing to Award Date_t Coef. Robust Std.

Err.Z P>|z| [95% Conf.

Interval]T-stat

gov .2755533 .1610688 1.71 0.087 -.0401358 .5912424

expedited -.580545 .1945554 -2.98 0.003 -.9618665 -.1992235

furep -.4673641 .2172815 -2.15 0.031 -.893228 -.0415003

tripart .8374219 .3059009 2.74 0.006 .2378671 1.436977

wcount .0001892 .0000237 8.00 0.000 .0001428 .0002355

busy arb -.0201723 .011216 -1.80 0.072 -.0421552 .0018106

naward -.0169747 .0095035 -1.79 0.074 -.0356012 .0016518

Hearing Days_t Coef. Robust Std.

Err.Z P>|z| [95% Conf.

Interval]T-stat

jurisother -.4575563 .1672811 -2.74 0.006 -.7854212 -.1296913

drug .3853115 .1389127 2.77 0.006 .1130475 .6575754

Charter .9450663 .3854717 2.45 0.014 .1895557 1.700577

cba .2228244 .1072907 2.08 0.038 .0125385 .4331104

discd .1920933 .1126538 1.71 0.088 -.0287041 .4128907

other .3101763 .1117161 2.78 0.005 .0912168 .5291359

gov .1996908 .0485235 4.12 0.000 .1045865 .2947952

educ .1081304 .0420283 2.57 0.010 .0257565 .1905043

afact -.1876773 .0371176 -5.06 0.000 -.2604264 -.1149281

tripart .1677282 .0692343 2.42 0.015 .0320314 .303425

wcount .0000573 .0000101 5.66 0.000 .0000374 .0000771

naward .006192 .0017254 3.59 0.000 .0028102 0095737

“Weber Specification” Results

Coef. Robust Std. Err. Z P>|z| [95% Conf. Interval]

T-stat

Weber

-1746566 .4572543 -0.38 0.702 -1.070859 .7215455

Weber = Pension Plan + Benefit or Welfare Plan + Canadian Charter + Tort

Pension Plan 0 "No" 1 "Yes"

Benefit or Welfare Plan (whether insured or not) 0 "No" 1 "Yes"

Canadian Charter 0 "No" 1 "Yes"

Tort 0 "No" 1 "Yes"

“Manual” Review of Jurisdictional Issues - Results

• Weber issues accounted for 9 of of 49 jurisdictional issues decided.

• Predominance of traditional issues (timeliness, scope of agreement).

• In about half of Weber jurisdiction cases cases it took markedly longer than average to get to a first hearing.

• No tendency away from average in hearing time or length of time from hearing to award.

• Due to small population of Weber jurisdiction issues, it is difficult to draw statistical inferences from these observations.

Conclusions1. The changed legal environment and culture of legalism hypotheses find little

support in the data:

• Most delay is prior to the hearing.

• The number of legal subjects dealt with in an award has no statistically significant effect at any stage.

• The total number of cases raising issues within new jurisdiction is relatively small in relation to the total number of legal issues decided.

• Use of legal counsel by a party has no statistically significant effect except at the hearing stage. There it is only the use of counsel by unions that is significant.

Conclusions

• On the other hand, jurisdictional determinations are associated with delay prior to the first date of hearing. The reasons for this require further investigation.

• Determining Weber jurisdiction probably makes some contribution to the likelihood of this delay, but the number of Weber jurisdiction cases is small.

Conclusions

2. There is no evidence in our data suggesting that arbitral behavior is a significant contributor to systemic delay.

• Award time is a relatively small fraction of total delay.• The length of awards has little effect on award time.

3. Government parties are more prone to delay at every stage of the process, suggesting that institutional decision-making processes and resource allocations probably matter.

Conclusions

4. Party caution or risk aversion in choices of representation, arbitrator or procedure appears to play relatively little role in delay at a systemic level:• While tripartism causes delay, it is in sharp decline.• Decisions to use the busiest arbitrators have little or no

statistically significant effect on delay at any stage of the process.

• The raising of procedural issues appears to have no statistically significant effect on delay at any stage of the process.

• As noted above, use of legal counsel by a party has no statistically significant effect except at the hearing stage. There it is only use of counsel by unions that is significant.

Conclusions

5. The principal causes of delay are therefore likely to lie in the priorities of the parties, or in incentive or coordination problems between them.

This is consistent with the concentration of delay in the pre-hearing stage.

The data do not permit us to sort out whether or to what extent such delays result from party decisions to use time to heal, to use delay tactically, to bring or defend cases for political reasons, or simply from a lack of information, lack of trust, or from dealing with an accumulated backlog resulting from resource constraints.

Policy Implications

Addressing the bulk of increasing delay probably does not require:

• Changes to arbitral jurisdiction• Regulation of arbitral decision-making time lines.• A larger supply of arbitrators.• Moving away from legal representation.

Policy Implications

Further research is required to determine what prevents parties from moving more quickly. Depending on the results of such research, policy makers might consider:

• Providing information on the mechanics of and business case for expedited procedures.

• Facilitating negotiation of expedited procedures.• Enabling a party to elect from a wider range of mandatory

expedited procedures.• Requiring arbitrators to case-manage in the absence of

agreement to the contrary.