Weber, the Common Law, and Industrial Self-Government

AuthorElizabeth Shilton
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 
Weber, the Common Law, and
Eizbeth Shiton
Words of an agreement which speak loudly and liberally to one arbitrator
may be palls of silence to another.
The decision of the Supreme Court of Canada in Weber v Ontario Hydro2
has often been read as requiring arbitrators to take jurisdiction over
claims that have their source in the common law. Based on this reading,
the decision has been denounced as subverting the foundational purpose
of labour arbitration as a tool for enforcing the parties’ private law. In
Bora Laskin, “Problems of Procedure and Proof in Labour Arbitration” () 
Canadian Public Administration  at  [Laskin, “Problems of Procedure”].
 []  SCR  [Weber].
See e.g., Ray Brown & Brian Etherington, “Weber v Ontario Hydro: A Denial of
Access to Justice for the Organized Employee?” ()  Canadian Labour and
Employment Law Journal ; Bernard Adell, “Jurisdictional Overlap Between Arbi-
tration and Other Forums: An Update” ()  Canadian Labour and Employment
Law Journal ; Donald D Carter, “Looking at Weber Five Years Later: Is it Time
for a New Approach?” ()  Canadian Labour and Employment Law Journal ;
Brian Etherington, “OPSEU v Seneca College: Deference as a Two-Edged Sword — A
Missed Opportunity to Address the ‘Weber Gap’” () : Canadian Labour and
Employment Law Journal ; Michel G Picher, “Dening the Scope of Arbitration:
The Impact of Weber: An Arbitrator’s Perspective” in Kevin Whitaker et al, eds,
(–)  Labour Arbitration Year Book (Toronto: Lancaster House, ) .
 
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Seneca College v Ontario Public Service Employees Union, Arbitrator Pam-
ela Picher identied a number of “potentially devastating consequences”
owing from a requirement that arbitrators enforce the common law,
including the overloading of grievance procedures, the exacerbation of
interpersonal conicts in the workplace, and the squandering of collect-
ive resources on disputes without collective dimensions. Picher con-
cluded that “[i]f all wrongs arising in the workplace, tortious as well as
contractual, are indiscriminately placed within the grievance and arbi-
tration procedure, the very eciency and vitality of that cornerstone of
the labour relations system is at risk. In her view, such disputes should
be resolved “as they have been for centuries, in the courts of common
law, not at arbitration. Arbitrator Michel Picher summed up the views
of many scholars, arbitrators and practitioners in his widely-quoted ob-
servation that “the good intentions and ‘pro-arbitration’ bent of [Weber]
may prove to be a Pandora’s box of unforeseen negative consequences
for individual rights, as well as for labour arbitration and collective bar-
gaining itself.
In this essay, I challenge the view that Weber requires arbitrators to
enforce the common law, and the related conclusion that Weber under-
mines the role of labour arbitration as a mechanism for enforcing the
parties’ private law. I argue, on the contrary, that Weber’s liberal vision
of arbitration attempts to restore arbitration to its original role as the
“judicial branch” of industrial self-government. The theory of arbitration
espoused in Weber closely tracks that of the “industrial pluralist” arbi-
trator-scholars whose work was so inuential in shaping the arbitration
model enshrined in Canadian collective bargaining statutes. For indus-
trial pluralists, unionized workplaces were private enclaves regulated by
a law autonomously generated through collective bargaining. That law
displaced the common law rules which would have otherwise governed
the employment relationship.
()  LAC (th) , (Arbitrator: P Picher) [Seneca Arbitration Decision], rev’d
sub nom OPSEU v Seneca College of Applied Arts and Technology ()  OR (d)
 (Div Ct), a’d ()  OR (d)  (CA), leave to appeal to SCC refused, 
OAC n ( November ).
Seneca Arbitration Decision, above note  at para .
Ibid at para .
Ibid at para .
M. Picher, above note  at .
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Weber, the Common Law, and Industrial Self-Government
In its ideal form, the pluralist conception depended for its coherence
on the idea that employers and unions were equal partners in “mak-
ing” the law of the unionized workplace. That conception was never
very stable, since it was in constant competition with the fundamental
conception of the employment relationship as one of domination and
subordination, and with deeply embedded ideas about the nature and in-
cidents of property rights. It was ultimately corrupted by a generation of
arbitrators unwilling to translate the formal equality reected in collect-
ive bargaining statutes into a substantively equal distribution of power
in the workplace. Those arbitrators opted for a more employer-friendly
distribution of power rooted in the common law, under which unionized
employers retained their common law power to control and direct the
workforce except to the extent that unions were able to fetter that power
through limitations reected in the collective agreement. Their approach
became known as “reserved rights” theory.
Arbitrators inuenced by reserved rights theory applied narrow and
literalist “readings” of collective agreements that created a gap between
employment rights and arbitral remedies. This gap left room for the emer-
gence of the idea that terms and conditions of employment in unionized
workplaces could subsist outside the perimeter of the collective agree-
ment, governed by the common law of employment and enforceable — if
they were enforceable at all — in the ordinary civil courts. Webers liberal
approach to the jurisdiction of arbitrators eliminates (or at least shrinks)
that gap, bringing disputes about terms and conditions of employment
in unionized workplaces back into the industrial pluralist world in which
they are addressed within the framework of the collective agreement.
Within this framework, disputes are resolved according to their “essential
character” rather than their common law classication, and the common
law plays no role per se. Understood thus, Weber poses no challenge to
such core pluralist principles as the autonomy of the parties to make their
own law through collective bargaining, or the integrity of arbitration as
the judicial branch of industrial self-government. Indeed, the centrality
given to the collective agreement by the Supreme Court of Canada’s de-
cision goes a considerable way towards reclaiming these principles from
the desuetude to which reserved rights theory had consigned them.
I develop my argument as follows. Part A examines the inuence of
the pluralist idea of industrial self-government on the role of arbitrators
within the collective bargaining model established by the US Wagner

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