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Employee Responsibilities and Rights .rourna~ VoL 7, No.

2, 1994

Arbitrators' Characteristics and Decision-Making


Records, Gender of Arbitrators and Grievants, and
the Presence of Legal Counsel as Predictors of
Arbitral Outcomes
Stephen M. Crow 1 and J a m e s W. Logan 1

Labor arbitration helps define employee and employer rights attd 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 headn& 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 studiea~ the arbitrator's disciplinary award orientation is the only one with a
consistent impact on arbitral outcomes. I'Ve conclude that the energy and resources
expended by the advocates concerning non-case-related issues wotdd 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.
K E Y WORDS: selection of arbitrators; characteristics of arbitrators; arbitral award orientation; arbitral
decision making; gender effects; legal counsel effects.

INTRODUCTION

L a b o r arbitration 2 plays a role in defining the rights a n d responsibilities o f


the e m p l o y e e and the employer. M a n a g e m e n t and union advocates at labor arbi-

1Department of Managment, College of Business Administration, University of New Orleans, New


Orleans, Louisiana 70148
2Arbitration is a process where a third-party neutral is called to make a final and binding decision about
a dispute between two parties. In labor arbitration, this translates to a dispute between management
and the union. Each of these two parties is represented by advocates at the hearing. The advocates
for the union are normally union officers within the bargaining unit and union representatives form
the local and/or international levels of the union. Management is usually represented by advocates

169
0892-7545/94~:JOO-O169507.00J)O 1994 Plcnurn PublishingCorporation
170 Crow and Logan

tration are understandably concerned before the hearing; however, not all of their
concerns are related to the rights and responsibilities or to the facts of the case.
Selecting an arbitrator is a primary concern for the advocates, and this selection
process has been a topic of considerable debate in the labor arbitration literature.
For what they believe to be valid reasons, the advocates at arbitration are inordi-
nately interested in the personal background and decision-making record of the
arbitrator. Becoming known to the advocates is such an accepted aspect of arbi-
tration that freshman labor arbitrators are routinely cautioned to expect little con-
sideration for the first few years of their practice. Many advocates maintain dossiers
on arbitrators, and an industry has developed that tracks the personal and decisional
characteristics of the arbitrators. If arbitrators have a "track record," their perform-
ance can be checked out in a number of ways---telephone, "word-of-mouth," or
correspondence (Jennings & Allen, 1991). The assumption is that with a good back-
ground check, advocates can predict an arbitrator's decision. As we shall illustrate,
the predictive validity of this tracking is controversial.
Selecting the "right" arbitrator is only one of the pre-hearing decisions of
concern to the advocates. Deciding whether to be represented by legal counsel at
the hearing is another problem. 3 This decision is not always easy to make--attorneys
are expensive and their effect on arbitral outcomes is not well understood. The
advocates also worry about how the gender of the arbitrator and the grievant will
interact to influence the arbitrator's decision. For example, if the grievant is female,
the union advocate may want to know if a male arbitrator, in comparison to a
female arbitrator, would show more or less leniency to the grievant.
The purpose of this study is to examine whether these non-case-related factors
deserve much concern and consideration by the advocates. More specifically, we
want to determine if the arbitrators' personal characteristics and their decision-mak-
ing records, the gender of arbitrators and grievants, and the presence of legal coun-
sel have any effect on arbitral outcomes.

Characteristics of Arbitrators

Research into arbitrators' backgrounds and decision-making habits is justified,


since the parties to arbitration, union and management advocates, believe there is
a connection between the arbitrators' characteristics and their decision-making hab-
its (Dworkin, 1974; Nelson & Curry, 1981; Rezler & Peterson, 1978; Zirkel &
Thornton, 1989). Preference for arbitrators with a legal education, experienced ar-
bitrators, arbitrators with a "favorable" decision record, arbitrators with a pre-ar-

from the establishment where the dispute emerged and/or advocates from another function of the
organization, for example, from a corporate human resources group. Additionally, the opposing
advocates may be represented by outside legal counsel. The issues at arbitration are normally originated
by the union and involve an alleged breach of the collective bargaining agreement (e.g., an employee
was disciplined without just cause, overtime work was assigned improperly, etc.).
3The value of legal counsel at arbitration is somewhat removed from the primary focus of this study---the
importance of arbitrator-related characteristics on decisions. We added it to our analysis for the
convenience of union and management representatives who may be interested in how attorneys impact
outcomes.
Arbitrators' Characlertsllcs 171

bitration background, and arbitrators that are known by the advocates are just a
few of the conditions that influence the selection process (i.e., Berkley & Zacur,
1990; Bloom & Cavanagh, 1986; Briggs & Anderson, 1980; Lawson, 1981; Primeaux
& Brannen, 1975; Rezler & Peterson, 1978). The underlying assumption is that
arbitrators' biographical characteristics reflect their values and thus influence their
decisions (Bankston, 1976; Bemmels, 1990; Gross, 1967). Because of this assumed
connection, the advocates devote vast amounts of energy and resources to the se-
lection of arbitrators. Scholars have devoted as much or more energy and resources
to the study of the related issues (see, for examples, Bemmels, 1991; Berkley &
Zacur, 1990; Block & Steiber, 1987; Bloom & Cavanagh, 1986; Briggs & Anderson,
1980; Dworkin, 1974; Eaton, 1967; Fleming, 1965; Heneman & Sandver, 1983; King,
1971; Lawson, 1981; Nelson, 1986; Nelson & Curry, 1981; Rezler & Peterson, 1978;
Primeaux & Branner, 1975; Rezler & Peterson, 1978; Teele, 1962; Thornton &
Zirkel, 1990; Warner & Benstein, 1951; Westerkamp & Miller, 1971; Zirkel &
Thornton, 1989). The results of many of the studies of arbitral selection are con-
tradictory or suffer from methodological weaknesses. In short, the findings are not
conclusive.
The study of the relationship between the arbitrators' characteristics and their
decision making usually focuses on the influence of factors such as experience, edu-
cation, age, gender, occupation, familiarity with the advocates, registration with vari-
ous arbitration agencies, geographical location, and professional activities. Not
surprisingly, previous research is dominated by the examination of experience as a
factor in arbitral decision making. Most arbitrators believe that there is no substitute
for experience (Jennings & Allen, 1991), and generally, the advocates prefer expe-
rienced arbitrators, assuming them to be more competent than those with little or
no experience. Political realities also influence the preference for experience. Ar-
guably, no advocate wants to select an untested arbitrator and take the blame for
a radical decision that may irreparably damage the interests of the advocates. If
an experienced arbitrator "runs from first to third ''4 with a decision, the losing ad-
vocate can defend his selection by saying there had been no signs of incompetence
or lunacy in the arbitrator's decision-making history.
Because experience weighs so heavily in the selection of an arbitrator, it is
an attractive research issue. However, there is very little support for the faith that
advocates place in experience, or in any other biographical characteristic for that
matter. Most studies have found no relationship between experience and arbitral
decision making (e.g., Deitsch & Dilts, 1989; Fleming, 1965; Heneman & Sandver,
1983; Sprehe & Small, 1984; Teele, 1962; Thornton & Zirkel, 1990; Westerkamp
& Miller, 1971; Zirkel & Thornton, 1989). Bankston (1976) found some education
and experience effects in an arbitral decision-making study by using a semantic
differential test. Additionally, Nelson and Curry (1983) found some support for age
and experience, but no support for occupation and education as predictors for de-
4Some may recall a question posed to Yankees' manager Casey Stengel in the 1950s by a sports reporter
about whether he thought one of the major league players, the mentally troubled Jim Piersall, was
crazy. In 1952, Piersall had been committed to the violent ward of Westborough State Hospital in
Boston, after which he was closely monitored by the news media for any signs of aberrant behavior.
Stengel concluded that since he had never seen Piersall run from first to third, he must be sane.
172 Crow and Logan

cisions. In a recent related study, Bemmels (1990) found that age, gender, educa-
tion, and occupation had a very small, but statistically significant impact on arbitral
decision making. In summary, we agree with Bemmels (1990) and Heneman and
Sandver (1983) that there is not enough support for the proposition that arbitrators'
characteristics are useful predictors of arbitral decision making.
Hypothesis 1. Decision outcomes in arbitration will not be influenced to any significant
statistical extent by the arbitrators' experience and biographical characteristics analyzed in
this study.

The Interplay of Arbitrator and Grievant Gender

One pre-hearing concern that may become increasingly important is the effect
of the gender of the arbitrator and of the grievant on final decisions. For most of
labor arbitration history, there has been little concern about gender effects since
arbitration has been traditionally male dominated. Today, women are involved in
every role of arbitratiorv---as grievants, advocates, and arbitrators.
There are two competing theories on the judgments made by male decision
makers concerning females in courtlike settings (Bemmels, 1991; Moulds, 1980;
Nagel & Hagan, 1983). The first theory proposes that women are subordinate, not
responsible for their actions, at the mercy of society, and therefore need protection.
This attitude assumes that men are protective of women and will be more tolerant
of offenses by women than they would be of the same offenses by men. The second
view is the "evil woman" theory, wherein, women who commit offenses are per-
ceived as having violated their proper sex role, thereby relinquishing their right to
protection by men. Here, men as judges will be less tolerant of women than men
in similar circumstances.
Several studies have examined the effects of gender in labor arbitration de-
cision making. Bemmels (1988a; 1988b, 1988e) found that arbitrators, irrespective
of their gender, are more lenient with female grievants then with male grievants.
In a more recent study, Bemmels (1991) found significance in only one condition
of arbitrator and grievant gender---male arbitrators were more lenient with female
grievants than with male grievants. In contrast, Rodgers and Helburn's (1985) re-
search indicated that arbitrators are more lenient with male grievants. To round
out the research, Bigoness and DuBose (1985), Block and Stieber (1987), and Scott
and Shadoan (1989) found no gender effects in arbitral decision making. Although
the empirical evidence is unclear, Bemmels' (1991) review of all the related research
led him to conclude that there is a weak gender effect in which male arbitrators
are more lenient with female grievants than they are with male grievants. We be-
lieve that Bemmels' logic and research supports the following hypothesis:
Hypothesis 2. Decision outcomes in arbitration can be predicted based on the gender of
the arbitrators and the grievants. More specifically, ceteds paribus, male arbitrators will be
more likely to sustain the grievances of women than of men.
Arbitrators' Characteristics 173

Legal Counsel Effects

The costs of legal counsel are substantial, indicating that the parties to arbi-
tration must believe they can improve their chances of winning by the use of legal
advisors (Block & Stieber, 1987; Bloom & Cavanagh, 1986; Wagar, 1990). We found
only three studies related to the impact of attorneys on arbitral decision making.
Ponak (1987) concluded that the presence of counsel influences decisional out-
comes. He found evidence that the employer's win rate decreased when the union
had legal counsel and management did not; the employer's win rate improved when
both parties had legal counsel, and the union's win rate improved when neither
party had legal counsel. Block and Stieber (1987) found that each party has a better
chance for a favorable award when it has counsel and the other party does not. In
addition, when both parties are represented by counsel there is no difference in
the awards. Wagar (1990) found that the probability of an employer victory was
greater if the employer had legal counsel and the union did not. These findings
lead us to hypothesize:
Hypothesis 3. Decision outcomes in arbitration are influenced by the presence of legal
counsel. More specifically, each party has a better opportunity for a favorable award when
it has counsel and the other party does not.

Award Orientation

An arbitrator's award orientation is the extent to which his or her bias in


awards favors either management or the union, or demonstrates a propensity for
modifying awards. In a sense, award orientation is the arbitrator's track record or
batting average. Not surprisingly, both union and management advocates prefer ar-
bitrators with track records favorable to their viewpoints (Bloom & Cavanagh,
1986).
In general, arbitrators have a bias for management in discipline cases (Mills,
1989). Using statistics acquired from the American Arbitration Association for 1986,
Mills (1989) found that in discipline cases, arbitrators rule for management 51%
of the time, rule for the union 32% of the time, and split their decisions 17% of
the time. The reason for the management bias is not clear. Mills suspects that it
may be due to management taking only the stronger cases to arbitration.
There is little published research on award orientation. We found one study
related to the effect of award orientation on arbitral decision making. Block and
Stieber (1987), in their study of the impact of the presence of legal counsel on
arbitral decision making, also examined arbitrator award orientation. They found
that several of the arbitrators in their study consistently favored one of the parties
over the other.
We believe that award orientation evidenced by an established track record
is a window to an arbitrator's value system. Although the issues have been studied
extensively, the impact of personal values on arbitral decision making is still con-
troversial. Many scholars (e.g., Landis, 1977; Gross, 1967) have little doubt that the
arbitrators' values influence their decisions. Other researchers (e.g., Ashenfelter,
174 Crow and Logan

1987; Doeringer, 1977) believe that arbitration awards are virtually interchangeable
regardless of the arbitrators' personal values and attitudes.
Based on our experience, we find that few people are neutral in their dealings
with unions and management. Generally, unions and employers represent conflict-
ing philosophical beliefs. As a result, many people have deep-seated beliefs and
attitudes about unions and employers and favor one over the other. We suspect
that many arbitrators, at least on an unconscious level, have these same deep-seated
beliefs; and surely, personal beliefs must have an impact on decision making. Robert
Coulson, President of the American Arbitration Association, seems to agree:
People are loyal to their own beliefs, even to prejudices that may not be in their own self
interest. For example, studies have shown that most people find it difficult to hold
conflicting beliefs. Once adopted, an idea is difficult to dislodge, even when one is
determined to be impartial. That is not to say that people are incapable of changing their
minds, but they do tend to resist such changes and defend their present view even against
contrary data. (1990, 38)

We also suspect that in situations of uncertainty personal values are important


in shaping attitudes. While the general notion may be that arbitrators are fully cog-
nizant of the facts of the case at the conclusion of the hearing, in truth the issues
are frequently clouded, facts are disjointed, and the veracity of witnesses is inde-
terminable. All of which makes it sometimes difficult to make a reasoned judgment.
The case may even take on a Kafka-like surrealism and the arbitrator may have
difficulty making sense of it all. Edgar A. Jones, Jr. (1980) had this to say about
the uncertainty that triers of fact experience when making decisions:
There are four [situations], each of which will, at one time or another, be experienced as
a hearing proceeds, and in some difficult cases a trier will run through all four of them
before deciding the case. First, there are situations in which there is no doubt in the trier's
mind either about what happened or of how the dispute should be resolved .... Second ...
the trier remains in doubt about what happened but has somehow developed a sense of
assurance about how the case should be decided .... Third ... the trier has become convinced
about what has happened, but remains in doubt of how properly to resolve the dispute ....
Fourth, are those instances where the trier is truly perplexed [in doubt about what
happened and unsure of what decision to make]. (1980, 52)

Surely, experienced arbitrators find themselves in one of these four circum-


stances from time to time. In situations of uncertainty, we suspect that arbitrators
rely on their personal values. We also suspect that few, if any, arbitrators are totally
indifferent in their attitudes about unions and employers. Thus, arbitrators may
favor unions more than employers or vice versa.
We suggest that the level of interaction between the facts of the case and the
arbitrators' values is determined by the uncertainty of the case; the greater the
degree of uncertainty associated with the facts of the case, the greater the likelihood
of values acting as an imperative for the decision. We propose the following hy-
pothesis:
Hypothesis 4. The inherent uncertainties associated with the facts of any particular ease
in labor arbitration suggest that decision outcomes can be predicted based on an
arbitrator's award orientation. More specifically, arbitrators who have higher rates of
decisions favoring one decision outcome (management wins, the union wins, or the decision
is split) will tend to decide cases in accordance with that orientation.
Arbitrators' Characteristics 175

INTRODUCTION

Data sources

We analyzed 248 published arbitration awards related to alcohol and drug


disciplinary cases. The cases were published by the Bureau of National Affairs and
Commerce Clearing House from 1979 to 1989.

Variables

Table I illustrates the descriptive statistics for the variables used in the analy-
sis. The dichotomous dependent variables---(1) management wins or loses, (2) the
union wins or loses, or (3) the arbitrator splits the decision or does not split the
decision---are consistent with those employed in labor arbitration research (e.g.,
Cain & Stahl, 1983; Denenberg & Denenberg, 1983; Gross, 1967; Landis, 1977;
Teele, 1962). These variables represent the generally expected range of decisions
by an arbitrator in disciplinary cases: upheld---employer's disciplinary action was
fully sustained; overruled--employer's disciplinary action was fully rejected; and
modified or split---disciplinary penalty was reduced or grievant reinstated with some
loss of back pay.
We used four categories of independent variables. These were characteristics
of arbitrators, arbitrator and grievant gender effects, legal counsel effects, and ar-
bitration award orientation. There were 11 arbitrator characteristics obtained from
LRP Publications---one of the organizations that track arbitrators' awards and bio-
graphical information. The arbitrator characteristics included age and four catego-
ries of experience. The experience categories were total years of arbitration
experience, the number of issues arbitrated, the number of different industries ar-
bitrated, and whether the arbitrator was a member of the National Academy of
Arbitrators. The arbitrators' education was included as either having or not having
a law degree. We also wanted to determine if a terminal degree from a union
region (northeast and midwest states) had an effect. Two additional characteristics,
whether the arbitrators were academicians and whether they arbitrated full time,
were considered. We also examined the time between the incident and the award
data and whether arbitrators living in a union region demonstrate any biased effects.
Gender effects were examined based on Bemmels' (1991) methods. We de-
veloped dummy codes for the four conditions of arbitrator and grievant gender--fe-
male grievant and male arbitrator, male grievant and female arbitrator, both female,
and both male. There was an insufficient number of cases (1) where arbitrators
and grievants were both female; consequently, that category was dropped from the
analyses.
We developed four categories for the presence of legal counsel at arbitration.
These categories were no counsel was present, both parties had counsel, only man-
agement had counsel, and only the union had counsel. We did not include the
condition wherein neither party had counsel to avoid statistical redundancies in the
analyses.
176 Crow and Logan

TABLE I. Decriptive Statistics for 248 Arbitrations, 1979-1988


Variables Frequency Percent
Dependent variables
Award for management 129 52
Award for the union 57 23
Split award 62 25
Independent variables
Characteristics of arbitrators
Age 57.13a 11.12b
Total years experience 15.54a 7.08b
Issues arbitrated 22.46a 9.54b
Industries arbitrated 26.46a 14.64/'
National Academy member 148 59.7
Law degree 172 69.4
Terminal degree in union region 138 55.6
Academician 84 33.9
Full time arbitrator 93 37.5
Time between incident and award 9.66a 4.82b
Resident of union region 94 37.9
Gender
Grievant/arbitrator
Female/male 29 11.7
Male/female 19 7.7
Female/female 1 0.4
Male/male 199 80.2
Legal counsel
Neither have counsel 71 28.6
Both have counsel 89 35.9
Management counsel only 74 29.8
Union counsel only 14 5.6
Award orientation
Total for management 52a 12b
Total for union 30a li b
Total for splits 18a 9b
Discipline for management 46a 17b
Discipline for union 26a 17b
Discipline for splits 28a 15b
aMean.
bStandard deviation.

F o r a w a r d o r i e n t a t i o n , we u s e d each a r b i t r a t o r ' s allocation o f awards to the


t h r e e possible decisional o u t c o m e s - - a w a r d for the u n i o n , award for m a n a g e m e n t ,
o r a split award. T h i s r e q u i r e d six categories since we h a d award statistics for b o t h
total a w a r d a l l o c a t i o n (discipline a n d n o n d i s c i p l i n e cases) a n d a w a r d a l l o c a t i o n for
discipline cases only.
Arbitrators' Characteristics 177

Estimation

A logistic regression model was used to examine variable relationships. All


dependent variables of interest in this study have only two values--an event occurs
or does not occur. For example, at labor arbitration, management will win or not
win, the union will win or not win, or the arbitrator will split a decision or not split
a decision. A logistic regression model will generally fit dichotomous data without
violating relevant statistical assumptions (Norusis, 1990). With logistical analyses,
an examination can be made of the effects on the dependent variable by any one
of the independent variables after controlling for the others. The logistic regression
coefficients are the probability of an event occurring based on the occurrence of
another event (Norusis, 1990).

RESULTS

As a test of the generalizability of this sample, the results of this analysis


were compared with statistics provided by LRP Publications for all published dis-
ciplinary labor arbitration awards from January 1980 through May 1989. A chi-
square test (X2 = 2.33 compared the discipline cases of this study to the LRP
discipline eases. The pattern was the same for both sets of statistics; management
wins most of the cases, and arbitrators split awards more often than they decide
for the union. The chi-square results indicate consistency between the decisions in
the LRP sample and the sample in this study.

Award for Management

Analysis of the results in Table II indicates that management is more likely


to win at arbitration under two conditions. An award for management is more likely
to occur when management is represented by counsel at the hearing and the union
is not (support for Hypothesis 3). In addition, an award for management is more
likely when the arbitrator has a discipline case award orientation for management
(partial support for Hypothesis 4). We examined the R statistic to determine the
partial correlation between the dependent variable (an award for management) and
the two significant independent variables. R can range from -1 to +1, where a
positive value indicates that as the variable increases in value, so does the likelihood
of an event occurring (Norusis, 1988). Low values of R indicate that the variable
has a small partial contribution to the model. Both R values were relatively low,
0.12 for the legal counsel condition and 0.13 for the award orientation.

Award for the Union

Analysis of results in Table III indicates that the union is more likely to win
at arbitration when the arbitrator is an attorney. In addition, the union is more
likely to lose at arbitration under two conditions. An award against the union is
178 Crow and Logan

TABLE II. Logistic Regression Results----Award for Management


Variables Beta R"
Constant 24.777

Characteristics of arbitrators
Age -0.019
Total years experience 0.047 l'
Issues arbitrated -0.011
Industries arbitrated -0.008
National academy member 0.254
Law degree --0.381
Terminal degree in union region -0.146
Academician --0.645b
Full time arbitrator 0.165
Time between incident and award 0.012
Resident of union region --0.223
Gender
Grievant/arbitrator
Female/male -7.170
Male/female -7.331
Male/male -6.788
Legal counsel
Both have counsel -0.425
Management counsel only 1.032a 0.12
Union counsel only -1.209/'
Award orientation
Total for management -18.313
Total for union -19.339
Total for splits -19.189
Discipline for management 4.965 a 0.13
Discipline for union -0.897
Discipline for splits -0.051
aR, partial contribution.
b 0.10.
c 0.05.
a 0.01.

more likely to occur when the arbitrator has a discipline case award orientation
for management or for split awards (partial support for Hypothesis 4). We examined
the R statistic to determine the partial correlation between the dependent variable
(an award for the union) and the three significant independent variables. All three
R values were relatively low: 0.12 for an arbitrator who is an attorney, -0.15 for
management discipline case award orientation, and -0.11 for split discipline case
award orientation.

Split Awards

Analysis of the results in Table IV indicates that arbitrators who received


their terminal degrees in what we classified a union region were more likely to
split awards. Once again, the partial contribution (0.10) was low. Decision award
orientation in discipline cases was again significant. An historic tendency by arbi
Arbitrators' Characteristics 179

TABLE IlL Logistic Regression Results--Award for the Union


Variables Beta Ra
Constant --48.514

Characteristics of arbitrators
Age -0.009
Total years experience 0.005
Issues arbitrated 0.004
Industries arbitrated -0.001
National academy member 0.244
Law degree 1.151 0.12
Terminal degree in union region --0.765b
Academician 0.345
Full time arbitrator -0.232
Time between incident and award 0.005
Resident of union region 0.568
Gender
Grievant/arbitrator
Female/male 7.685
Male/female 7.336
Male/male ~ 7.472
Legal counsel
Both have counsel -0.132
Management counsel only 1.052
Union counsel only -0.699
Award orientation
Total for management 43.337
Total for union 40.340
Total for splits 45.252
Discipline for management --5.158a -0.15
Discipline for union 1.803
Discipline for splits 6.221 -0.11
aR, partial contribution.
b 0.10.
0.05.
d 0.01.

trators to split awards in discipline cases was a significant predictor for splitting
awards in this study (partial support for Hypothesis 4). However, partial contribu-
tion (0.11) was still quite low.

DISCUSSION

Characteristics of Arbitrators

The results of this study support Hypothesis 1 and Bemmels' (1990) and Hene-
man and Sandver's (1983) conclusions that arbitrators' characteristics are not very
useful as predictors for arbitral decision making. Across the three award conditions
180 Crow and Logan

TABLE IV. Logistic Regression Results--Split Awards


Variables Beta Ra
Constant -7.276
Characteristics of arbitrators
Age .033b
Total years experience -.059 b
Issues arbitrated .014
Industries arbitrated .013
National academy member --.436
Law degree --.552
Terminal degree in union region .901 0.10
Academician .399
Full time arbitrator .002
Time between incident and award -.023
Resident of union region --.288
Gender
Grievant/arbitrator
Female/male 3.816
Male/female 4.570
Male/male 3.518
Legal counsel
Both have counsel .583
Management counsel only --.746
Union counsel only .216
Award orientation
Total for management -1.511
Total for union 2.729
Total for splits -3.346
Discipline for management --.801
Discipline for union --.342
Discipline for splits 7.392c 0.I1
aR, partial contribution.
b 0.10.
0.05.
a 0.01.

(for m a n a g e m e n t , for the union, o r a split), there were only two characteristics that
had any effect. I n awards for m a n a g e m e n t conditions, n o n e o f the arbitrators' char-
acteristics w e r e statistically related to decision making. H o w e v e r , if the arbitrator
was an attorney, there was a t e n d e n c y to rule in favor o f the u n i o n and if the
arbitrator received his terminal d e g r e e in a u n i o n region, there was a t e n d e n c y to
split decisions. H o w e v e r , the partial contributions for these two characteristics w e r e
quite low.

G e n d e r Effects

T h e results o f this study did not s u p p o r t H y p o t h e s i s 2---we f o u n d n o g e n d e r


effects. This is c o n t r a r y to B e m m e l s ' (1991) research, wherein he f o u n d a w e a k
Arbitrators' Characteristics 181

gender effect in that male arbitrators are more lenient with female grievants. Based
on our research, we can only conclude that gender is either not a decisional im-
perative or that we did not have a sufficient number of cases to test the four gender
decisional conditions. For example, the female arbitrator and female grievant con-
dition was virtually non-existent---only one case.
The number of arbitration cases involving women arbitrators and grievants is
still quite small owing to underrepresentation of females in the arbitral context.
Generally, the field of labor arbitration is still the turf of male arbitrators, advocates,
and grievants. Many of the labor arbitrators from the World War II era have retired
or will do so soon. As they do, organizations like the American Arbitration Asso-
ciation and the Federal Mediation and Conciliation Service are affirmatively work-
ing to include females on their labor panels. Females are also gaining a foothold
in other traditionally male arbitral roles---advocates and bargaining-unit employees.
Progress notwithstanding, until more females gain entry into labor arbitration con-
texts, researchers will be limited in testing the full range of gender conditions in
arbitral decision making.
A central question remains do women arbitrators decide cases differently by
virtue of being women? We cannot unequivocally answer that question. Neverthe-
less, we agree with Sandra Day O'Connor, who responded to a similar question
about female judges:
Do women judges decide cases differently by virtue of being women? I would echo the
answer of my colleague, Justice Jeanne Coyne of the Supreme Court of Oklahoma, who
responded that a wise old man and a wise old woman reach the same conclusion.
("Melange." 1991, B5)

Legal Counsel Effects

We found partial support for Hypothesis 3. We expected to replicate Block


and Stieber's (1987) findings that when either management or the union was rep-
resented by legal counsel and the other side was not, the side with representation
had the edge. Instead, our findings are similar to those of Wagar (1990), in which
the probability of a management win was greater when the employer has legal coun-
sel and the union does not. The union, however, did not have an advantage when
it was represented and the employer was not.
There has been little speculation about why legal representation influences
the outcomes in labor arbitration contexts. From our study, we offer at least four
possible effects. First, and not easily ignored, is the halo effect--attorneys project
an impressive image. Arguably, attorneys are probably more eloquent in their pres-
entation than advocates with nonlegal backgrounds. This may have a significant
impact on decisions when the issues are clouded by uncertainty. Second, attorneys
are probably better skilled in advocacy. Advocacy is central to their education, train-
ing, and experience. Lawyers know the jargon, the structure, and the theatric z they
are in their element. This is not the case for management and union advocates
without legal backgrounds. Advocating at arbitration may be only small part of what
182 Crow and Logan

is required of them; consequently, advocates without a legal background may find


themselves at a comparative disadvantage when facing a skilled Iitigator.
Third, an attorney as advocate may be a surrogate for importance, commit-
ment, or philosophy. For example, when management or the union has an attorney
at the hearing it may be a signal that the case is important enough to roll out their
"big gun." Philosophically, one party may be so adamant about its position that it
will spare no cost to win. The implication here is that the presence of counsel is
not the imperative---its is the commitment to win.
Last, our findings and those of Wagar (1990) may be nothing more than an
expected statistical outcome due to the general nature of the disposition of cases
and legal representation. The American Arbitration Association tracks labor case
information and recently released statistics for disposition of cases and legal rep-
resentation ("A Look at," 1991). Management wins about 61% of the time and has
legal representation about 83% of the time---the two conditions highly correlate.
To say that the high percentage of management wins is due to legal representation
is as valid as saying that the high percentage of legal representation is due to the
high percentage of management wins. The fact that the two conditions are corre-
lated does not imply causality----we do not know for certain which direction the
effect takes.
Irrespective of the importance of these reasons or of any other reasons that
may account for the legal counsel effects, we are still in a quandary as to what to
suggest. We think Dick the butcher's proposal that the first thing we should do is
to kill all the lawyers 5 is too messy. However, common sense suggests a rule-of-
thumb for the parties to arbitration. If a case could go either way, if the outcome
is very important, if the advocate does not have outstanding skills, if the other side
will have an attorney as its advocate, then a skilled attorney is a must.

Award Orientation

We may be the first to analyze arbitrators' decision-making histories (award


orientation) as a major issue, and in our study, award orientation clearly had the
greatest impact on decision outcomes. Recall that for award orientation we used
each arbitrator's allocation of awards to the three possible decisional out-
comes---award for the union, award for management, or a split award. This re-
quired six categories since we had award statistics for both total award allocation
(discipline and nondiscipline cases) and award allocation for discipline cases only.
While arbitrator's total award allocation was useless as a predictor of decisional
outcomes, award allocation in disciplinary cases was related to decisions in all three
award conditions. Also, the directions of the relationships were generally logical.
An orientation for management was positively related to an award for manage-
ment; an orientation for management and for splits was negatively related to a
award for the union; and an orientation for splits was positively related to an
award for splits.

5From Shakespeare's The Second Part of Henry the Sixth, act IV, scene II.
Arbitrators' Characteristics 183

Although the partial contributions were low (absolute values ranged from 0.11
to 0.15), the fact that statistically significant relationships appeared in all three de-
cision situations is not easy to ignore. We are left to conclude that award orientation
is a significant, albeit weak, force in arbitral decision making. We can offer only
one rationale for our findings. Award orientation is a window into arbitrators' values
and attitudes about unions and employers. More specifically, it appears that arbi-
trators are, at least unconsciously, not altogether impartial in their feelings about
unions and employers----they may philosophically favor one over the other.
An arbitrator's decisional track record as a selection tool is problematic. Not
only will a multiplicity of conditions at the hearing impact the arbitrator's decision,
there is also no useful frame of reference for comparing decisional track records.

CONCLUSIONS

We believe that the advocates should assign less importance to gender and
biographical factors when selecting arbitrators. What we call award orienta-
tion---their decisional track record---is the only valid indicator of what arbitrators
are likely to do. Award orientation, however, is still a weak base from which to
make selection decisions. The bulk of contingency research makes a strong case
for the situational nature of decision making. From this, we believe it frivolous to
assign much importance to any non-case-related factor in the selection of arbitra-
tors. Each arbitration case is as unique as a fingerprint and there are simply too
many "swirls" involved to predict, with any degree of accuracy, the outcomes of
arbitration. As a result, the energy and resources expended by the advocates to
select arbitrators would be better spent on examining the potential impact on the
rights and responsibilities of management and its employees and in preparing their
cases for arbitration.
Our findings related to award orientation require further study. We suspect
that uncertainty about the case-related facts is the imperative for the apparent
award bias. If we are correct, it again supports the importance of prehearing prepa-
ration directed toward case-related considerations.

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