Lawyers,gender and grievance arbitration outcomes

Why should the grievant’s gender or the presence of legal representation affect arbitration outcomes? The “chivalry hypothesis” holds that male arbitrators will tend to favor female grievants; its theoretical mirror image, the “evil woman” hypothesis, suggests that female grievants suffer a comparative disadvantage vis-à-vis similarly situated males. However, neither hypothesis (both drawn from criminologists’ studies of judicial sentencing patterns) applies all that well to the grievance arbitration process where, unlike in the court system, the parties themselves select their decision-maker. This is not to say that the grievance arbitration process is free of gender discrimination, only that arbitrators are probably not the source of any pro- or anti-female bias which may be uncovered.     

Arbitrators’ characteristics and decision-making records,gender of arbitrators and grievants,and the presence of legal counsel as predictors of arbitral outcomes

Labor arbitration helps define employee and employer rights and responsibilities. Evidence indicates that the advocates at arbitration tend to concern themselves with issues unrelated to the facts of the case or to the rights and responsibilities of the parties involved. More specifically, before the hearing, management and union advocates often dwell on issues such as the importance of the arbitrators’ personal characteristics and their decision-making history, the likely effects of the gender of arbitrators and grievants, and whether the presence of legal counsel impacts the arbitral outcomes. The purpose of this study is to examine whether these non-case-related factors actually can be associated with differing awards by arbitrators. This study may be the first in which the arbitrators’ decision-making history (award orientation) is a primary issue. Of all the issues studied, the arbitrator’s disciplinary award orientation is the only one with a consistent impact on arbitral outcomes. We conclude that the energy and resources expended by the advocates concerning non-case-related issues would be better spent in preparing their cases for arbitration and in examining the potential impact of arbitration on the rights and responsibilities of management and its employees.     

An arbitrator looks at grievance arbitration

This article is an overview of the major considerations that are crucial in the thought processes of an arbitrator in deciding a grievance-arbitration case. An arbitrator’s first obligation is to interpret and apply provisions of the labor agreement in a manner consistent with the intent of the parties. Past practices or precedents are often considered by arbitrators to assess the intent of the parties and to decide certain issues. The most subjective area confronting arbitrators is that of fairness and equity, primarily in discipline/discharge matters where just cause must be demonstrated. Most arbitrators apply the preponderance of evidence standard as the required burden of proof in deciding equity matters. Consistency in handling of prior cases and documentation are especially important in an arbitrator’s weighing of evidence. In summary, grievance arbitration is an extension of democratic due process to the industrial and business world. This article was prepared for presentation at a seminar sponsored by the American Management Foundation, May 6–7, 1993 (Chicago, Illinois). It is a revised, updated version of an article that originally appeared in the October, 1978 issue ofPersonnel Journal.     

Protecting the Rights of Alleged Sexual Harassment Perpetrators: Guidance from the Decisions of Labor Arbitrators

Recent evidence indicates that sexual harassment in the workplace continues to pose a problem for organizations. Using published arbitration awards, the current study examines the critical issues involved in discipline decisions of alleged sexual harassment perpetrators. Content analysis of 92 cases enabled the examination of critical judgment factors considered by arbitrators examining the disciplinary penalties imposed by management. Elements of the arbitrator's judgment including the just cause standards, mitigating circumstances, severity of harassment, and length of harassment were examined. The results of the analyses are discussed with an emphasis on the lessons provided for effective management practices.     

商事仲裁员职业责任保险:制度思考、方式选择与现实困境

职业责任保险是现代社会中职业风险管理的一种方式,在我国的律师、医生、工程师、会计师等行业已得到应用。商事仲裁中,仲裁员可能因为工作失误或者过失造成当事人损失,可能产生民事赔偿责任,需要建立职业责任保险制度。考虑到我国实行仲裁员职业责任保险遇到的问题包括仲裁员责任体系不全,仲裁员民事责任制度缺失,仲裁行业管理体系不健全,仲裁机构的责任尚未明晰以及保险行业不发达,专业化险种开发有限等方面因素,宜采取以仲裁机构为被保险人的"集体保险式"、以仲裁员为被保险人的"个人保险式"和以仲裁案件为单位的"个案保险式"建立商事仲裁员职业责任保险制度。     

The union response to employer-initiated drug testing programs

The testing of employees for drugs has become a major workplace issue in the late 1980s. By all accounts, many firms have implemented, or at least considered, some sort of drug screening program. While various experts have debated the importance and necessity of initiating such programs, there has been only limited investigation of the differences between union and nonunion workplaces in how such programs are initiated and administered. This article investigates some questions related to those differences. The first part examines the differences between union and nonunion workplaces and their implementation of drug screening programs. We present differences derived primarily from the fact that nonunion employers are constrained only by constitutional and statutory law in their introduction and implementation of drug screening programs. Unionized employers, on the other hand, are constrained by collective bargaining and the grievance resolution process. The second part of the article examines union responses to employer-initiated drug testing programs. The third part examines arbitration decisions on drug testing provisions in unionized workplaces. We outline the major areas in which arbitrators have rendered decisions, including definitions of behavior that could trigger reasonable suspicion testing and whether the employer has the right to unilaterally institute or expand drug testing programs.     

Case characteristics affecting the method of grievance dispute settlement

In 1986, we reported the results of an attempt to model the inner, workings of grievance arbitration. We concluded that the primary determinant of whether or not a grievance is settled privately or through arbitral award is the degree of private, outside legal representation. This article extends that work. Utilizing a more sophisticated statistical technique with a better specified list of explanatory variables, it identifies two additional grievance case characteristics that influence the method of grievance settlement: case complexity and type of dispute. The probability of an arbitrated settlement is greatest where the issue is simple and involves discipline and where the parties are represented by private, outside attorney advocates.     

Pay reference arbitration and the disclosure of information

This is the second of two articles which bring together two aspects of industrial relations: the practice of arbitration and the disclosure of financial information at general pay claim references. This article reports and discusses the findings of a mailed questionnaire survey of ACAS arbitrators and offers some general conclusions.     

Arbitration of accommodation in US workplaces: employee,stakeholder and human resources characteristics

This research examines how arbitrators consider accommodations for employees with physical and mental illnesses. Unlike other recent research on the subject, the authors specifically and purposely draw their sample from recent US arbitration cases—2015 to 2018, n = 209. Additionally, using content analysis software, NVivo , the case characteristics were autocoded, and the case outcomes were manually coded. Using logistic regression, the following model was developed to predict the odds of case outcomes: disability, injury, discrimination, retaliation, absence and reinstatement. The Cox and Snell and Nagelkerke analysis indicates that our model accounts for approximately 15.6 to 21.5 per cent of the variance, with 33.3 per cent of the individual and split arbitration cases outcomes and 91.2 per cent for organisation arbitration cases correctly predicted. The model predicts 71.2 per cent of the cases.     

Protecting employee safety rights: OSHA or arbitration?

This paper analyzes the protection of employees against employer retatliation for seeking a safe and healthy workplace. It discusses the exercise of rights guaranteed by the Occupational Safety and Health Act (OSHA) of 1970 and compares the legal protection of Section 11(c) of that Act with the grievance arbitration mechanism found in most union contracts. It also considers the importance of union representation in the ability and protection of employees seeking to exercise their OSHA rights. Administrative and legislative recommendations are made to improve the OSHA procedures, and questions are raised regarding adapting arbitration procedures to the OSHA mechanism.     

对我国建立国际物流仲裁机构问题的研究

我国经济贸易和物流业的快速发展需要有良好的环境。文章提出为提升我国国际物流业的竞争力,在发展物流业基础设施和物流运作的基础上,还应该建设物流业发展的"软环境",其中包括物流仲裁环境。我国国际物流仲裁机构应该考虑设立在国际物流发达的口岸地区,还需要培育一支高水平的仲裁员队伍。     

The “I quit” syndrome

Managements, unions, and arbitrators have been plagued by a very simple but long-standing problem involving what might be termed a routine human resource action. The problem stated simply is: When is a quit a quit? Where employees are represented by a bargaining agent, the company cannot always be sure that a “quit is a quit.” It is clear that employers who do not understand the “I quit” syndrome are in an uncertain position with respect to handling such problems. The authors have also discovered that unions do not understand the “I quit” syndrome either and at times go to arbitration with all of its attendant costs when the employee has actually “quit.” The purposes of this article are to study how arbitrators have ruled, to establish the principles involved in this little-known area of union/management relations and to provide parties to such cases with information to guide them. Arbitrators have upheld grievances and reversed company actions often enough that there is a need to clarify what is a “quit” as well as a need to clarify what the rights are of both parties under the collective bargaining agreement. The authors found that many managements use the “I quit” syndrome as a substitute for disciplinary action. It is clear from arbitral decisions that it is best from the company point of view to allow the disciplinary system to handle problem employees. The authors also found that reasonable resignations by employees were upheld by arbitrators. If employers carefully handle and document employee resignations, the resignations will stand. Further, it is clear that employers must issue clear policy statements concerning resignations; this includes avoiding resignations under duress. Finally, parties to collective bargaining agreements need contract language defining a quit.     

Arbitration systems and negotiations

We consider a model of bargaining by concessions where agents can terminate negotiations by accepting the settlement of an arbitrator. The impact of pragmatic arbitrators—that enforce concessions that precede their appointment—is compared with that of arbitrators that act on principle—ignoring prior concessions. We show that while the impact of arbitration always depends on how costly that intervention is relative to direct negotiation, the range of scenarios for which it has an impact, and the precise effect of such impact, does change depending on the behavior—pragmatic or on principle—of the arbitrator. Moreover the requirement of mutual consent to appoint the arbitrator matters only when he is pragmatic. Efficiency and equilibrium are not aligned since agents sometimes reach negotiated agreements when an arbitrated settlement is more efficient and vice versa. What system of arbitration has the best performance depends on the arbitration and negotiation costs, and each can be optimal for plausible environments.      

Equity and arbitration in major league baseball

Equity theory argues that workers examine their job performance and salaries relative to workers in comparable situations. If compensation is inequitable, workers may adjust their behavior. We test the hypothesis that an arbitration‐eligible player in Major League Baseball is more likely to file for arbitration and/or proceed to an arbitration hearing if he feels he is underpaid relative to his comparison other. Bivariate probit is used to increase efficiency and correct for the sample bias in estimating decision models within the two‐step arbitration process. The results indicate that equity is a significant predictor of a player's unilateral decision to file but is an insignificant determinant of going to a hearing because of offsetting responses to equity by player and owner. Copyright © 2002 John Wiley & Sons, Ltd.     

A sequential selectivity model of the decisions of arbitrators

The study investigates arbitrator gender and grievant gender effects on the decisions of 146 arbitrators rendered on a hypothetical drug-testing case. The effects are estimated using a sequential selectivity model. This approach takes into account the sequential and conditional nature of arbitrators' decisions. The results indicate that arbitrators are more likely to overturn terminations when the grievant is female, and that female arbitrators are less likely to fully reinstate grievants when the termination is overturned. Other results include the finding that older arbitrators treated grievants more harshly by more often awarding only partial reinstatements. When suspensions are given, however, we find that older arbitrators award shorter suspensions than do younger arbitrators. It is also found that more experienced arbitrators awarded longer suspensions than less experienced arbitrators.     

Legal and Procedural Strategies for Employees Utilizing Arbitration for Statutory Disputes

This article § reviews the current United States law regarding arbitration of statutory disputes in the nonunion employment setting. The article is a literature review and offers no new research findings but rather focuses on the important legal and procedural strategies employees may use throughout the arbitration process. The article specifically advises the reader on selection of an attorney, selection of an arbitrator, selection of a third party administrator, the discovery process, and the requisite hearing procedure. Possible challenges to the arbitration process are also discussed. In addition, the article focuses on the advantages and disadvantages of arbitration from an employee's point of view.     

Disciplining sexual harassers: What’s fair?

To avoid liability for hostile environment sexual harassment under Title VII of the Civil Rights Act, and to minimize the negative effects of such conduct on victims’ morale and perhaps their performance, employers must implement remedial measures that are capable of ending the harassment or even preventing it. Determining what constitutes adequate remedial action is difficult, and employers may administer excessively severe disciplinary penalties to ensure legal compliance. But such a response would contravene the tenets of just cause and industrial due process. This investigation examines relevant arbitration decisions to determine how labor arbitrators have balanced these competing interests. That is, it delineates the criteria that should be used to ensure that the disciplinary penalties levied against employees who sexually harass others are both adequate and fair.     

Modern Pirates: How Arbitration Lawyers Help Corporations Seize National Assets and Limit State Autonomy

Large‐scale companies have worked for centuries with the governments of powerful nations to extract wealth from the rest of the world. Since the 1990s, one important method of continuing that legacy has been the use of secretive legal proceedings known as investor‐state dispute settlements (ISDS). Through this innocuous‐sounding practice, transnational corporations (TNCs) are able to blame foreign governments for their failure to extract as large a profit as they anticipated from their operations abroad. Asserting that changes in fiscal, environmental, or social policies have harmed them, TNCs have claimed that foreign governments should compensate them for the loss of potential revenues. ISDS tribunals have awarded billions of dollars as a result of such claims, mostly made under the auspices of bilateral investment treaties. Not only must governments spend millions of dollars defending themselves against assaults and tens or hundreds of millions if they lose their cases, but the ISDS system also has a chilling effect on the adoption of legislation designed to protect the health and safety of citizens. As a result of all the lawsuits in which corporations collect damages from governments under investment treaties, an array of groups in the legal industry have profited substantially: law firms representing corporate interests, arbitrators and other specialists in corporate arbitration, and litigation funders. The arbitration industry is, as a practical matter, the glue that holds the system together. The law firms involved in this industry do not wait passively for cases to arise. Instead, they actively pursue corporations to seek arbitration with governments, proselytize for the legitimacy of the current international investment regime, and block reforms that would limit arbitration opportunities. By creating methods of insulating TNCs from normal business risks and forcing host governments to bear the burden of liabilities, the arbitration system has effectively reinstituted a neo‐colonial regime through the judicial system.     

Experimental evidence of gender effects in arbitration decisions

The study investigates arbitrator gender and arbitrator-grievant gender effects on the decisions of 146 arbitrators rendered on a hypothetical sexual harassment case. Gender was not found to have a statistically significant effect on the decisions examined. However, other characteristics of the arbitrator—level of experience and level of education—were found to influence the arbitral decision.