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Did managers disregard proper procedure when they disciplined Mr. Haier?  Justify your answer.  How much weight should arbitrators give procedural propriety or impropriety when deciding a case like this one?

Did managers disregard proper procedure when they disciplined Mr. Haier?  Justify your answer.  How much weight should arbitrators give procedural propriety or impropriety when deciding a case like this one?

Understanding Business
Understanding Business
12th Edition
ISBN:9781259929434
Author:William Nickels
Publisher:William Nickels
Chapter1: Taking Risks And Making Profits Within The Dynamic Business Environment
Section: Chapter Questions
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  1. Did managers disregard proper procedure when they disciplined Mr. Haier?  Justify your answer.  How much weight should arbitrators give procedural propriety or impropriety when deciding a case like this one?
Virtual Campus 9:24 PM Mon Feb 26 ||| B Exhibit 11.11 Differences between Employment Arbitration, Labor Arbitration, and Jurors Involving an Employee Discharge 1. Burden of proof 2. Acceptability 3. Professional background 4. Consider mitigating circumstances 5. Decision 6. Who pays the arbitrator ●●●● Employment Arbitration CHAPTER 11 • Labor and Employment Arbitration 579 Employee Employer selects Management more than likely Not likely Less likely employ- ee will receive a favorable decision Usually the employer Labor Arbitration Employer Union and employer Neutral Yes More likely to receive favor- able decision when repre- sented by a union Usually the union and employer pay equally a Jurors Employee None Yes 2 AA Public service More likely to receive favorable decision than by an employment arbitrator Taxpayers, a small fee for jury duty and expenses SOURCE: Brian S. Klass, Douglas Mahony, and Hoyt N. Wheeler, "Decision-making about Workplace Disputes: A Policy Capturing Study of Employment Arbitrators, Labor Arbitrators and Jurors,” Industrial Relations, 45 (12) (2006), pp. 68–95. included 32 different case scenarios where an employee was challenging termination. Exhibit 11.11 highlights some of the significant differences between employment arbitra- tors, labor arbitrators, and jurors. Employment arbitrators, who usually have a manage- ment background, are usually selected solely by the employer and are less likely to rule in favor of the terminated employee. The employee has the burden of proof, which means that the employee must prove there was a violation of a company rule or policy that was written by the company. In addition, the employment arbitrator is not likely to consider mitigating circumstances, such as long service with the company, a good work record, and so on. Because the employer pays the arbitrator to serve and is selected by the employer, some critics of employment arbitration would say that the employment arbi- trator has allegiance to the employer. In comparison, the burden of proof in discharge cases in labor arbitration rests with the employer. The general principle is that a person is innocent until proven guilty. Since the labor arbitrator is selected and paid by both parties, the labor arbitrator must have a reputation of neutrality or he or she will not be selected by both parties. In addition, the labor arbitrator may find an employee guilty of wrongdoing, but due to a good work record of considerable years may reduce the penalty from a termination to a disciplinary suspension without pay. Since the burden of proof rests with the employer and a labor arbitrator considers mitigating circumstances, the employee is more likely to receive a favorable decision from the labor arbitrator. In between, in a jury trial, the employee has the burden to prove that the employer violated the employer's rules or policies. However, since jurors will consider mitigating cir- cumstances, they are more likely to render a favorable decision for the employee than an employment arbitrator would. Since jurors serve as a public service, they are not concerned about acceptability and receive only a small fee for their time and reimbursement for their expenses. 93 Copyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202 579/774 >
Transcribed Image Text:Virtual Campus 9:24 PM Mon Feb 26 ||| B Exhibit 11.11 Differences between Employment Arbitration, Labor Arbitration, and Jurors Involving an Employee Discharge 1. Burden of proof 2. Acceptability 3. Professional background 4. Consider mitigating circumstances 5. Decision 6. Who pays the arbitrator ●●●● Employment Arbitration CHAPTER 11 • Labor and Employment Arbitration 579 Employee Employer selects Management more than likely Not likely Less likely employ- ee will receive a favorable decision Usually the employer Labor Arbitration Employer Union and employer Neutral Yes More likely to receive favor- able decision when repre- sented by a union Usually the union and employer pay equally a Jurors Employee None Yes 2 AA Public service More likely to receive favorable decision than by an employment arbitrator Taxpayers, a small fee for jury duty and expenses SOURCE: Brian S. Klass, Douglas Mahony, and Hoyt N. Wheeler, "Decision-making about Workplace Disputes: A Policy Capturing Study of Employment Arbitrators, Labor Arbitrators and Jurors,” Industrial Relations, 45 (12) (2006), pp. 68–95. included 32 different case scenarios where an employee was challenging termination. Exhibit 11.11 highlights some of the significant differences between employment arbitra- tors, labor arbitrators, and jurors. Employment arbitrators, who usually have a manage- ment background, are usually selected solely by the employer and are less likely to rule in favor of the terminated employee. The employee has the burden of proof, which means that the employee must prove there was a violation of a company rule or policy that was written by the company. In addition, the employment arbitrator is not likely to consider mitigating circumstances, such as long service with the company, a good work record, and so on. Because the employer pays the arbitrator to serve and is selected by the employer, some critics of employment arbitration would say that the employment arbi- trator has allegiance to the employer. In comparison, the burden of proof in discharge cases in labor arbitration rests with the employer. The general principle is that a person is innocent until proven guilty. Since the labor arbitrator is selected and paid by both parties, the labor arbitrator must have a reputation of neutrality or he or she will not be selected by both parties. In addition, the labor arbitrator may find an employee guilty of wrongdoing, but due to a good work record of considerable years may reduce the penalty from a termination to a disciplinary suspension without pay. Since the burden of proof rests with the employer and a labor arbitrator considers mitigating circumstances, the employee is more likely to receive a favorable decision from the labor arbitrator. In between, in a jury trial, the employee has the burden to prove that the employer violated the employer's rules or policies. However, since jurors will consider mitigating cir- cumstances, they are more likely to render a favorable decision for the employee than an employment arbitrator would. Since jurors serve as a public service, they are not concerned about acceptability and receive only a small fee for their time and reimbursement for their expenses. 93 Copyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202 579/774 >
| Virtual Campus 9:24 PM Mon Feb 26 |||| = B 578 PART 3 ● Administering the Labor Agreement ●●●● QAA once or twice in a lifetime. First, if the employer selects the arbitrator and pays the arbi- trator for his or her services, the arbitrator may feel the pressure to rule in favor of the employer in order to be selected in future cases. For all practical purposes, the employer and the arbitrator are the "repeat players." Second, in the selection of the arbitrator, even when both parties participate in the selection, unrepresented employees have little infor- mation on which to base their selection. Even when an employee has legal counsel, the attorney may or may not have access to useful information about the arbitrator. In com- parison to a unionized setting, nearly all international unions and the American Federa- tion of Labor-Congress of Industrial Organizations (AFL-CIO) have research staff who can obtain evaluative information about arbitrators that would be useful in selection. Third, "repeat player" employers have certain strategic advantages because they have an institutional memory. Employers can keep records about the disposition of prior cases of the arbitrator; the unrepresented employee has no comparable resource. Because the union has a continuous relationship with the employer through the collective bargaining agreement, the union gains an institutional memory and becomes a "repeat player” in the arbitration process. 91 Supporters of Mandatory Employment Arbitration. Although many scholars and professional groups like the NAA, and governmental agencies, like the EEOC, have con- demned mandatory arbitration arrangements, Theodore J. St. Antoine, the former presi- dent of the National Academy of Arbitrators, believes that mandatory arbitration may be a “blessing in disguise”. As a practical matter, mandatory arbitration may offer persons with small monetary claims a better opportunity to secure a remedy than a traditional legal action. The EEOC is not the answer because it is underfunded and too overloaded with work to try anything other than major cases. St. Antoine argues that arbitration is private, cheaper, faster, and more informal than court litigation which is a public forum. As a result, lawyers are more willing to assist a client in an arbitration proceeding when they would not be willing to devote the time and effort to prepare a federal court appearance. Further, without a lawyer, employees may make a reasonable presentation on their own or with the assistance of a fellow employee in a much less intimidating atmosphere of arbitration. St. Antoine fur- ther argues that if the claimant sues in court, there is no reason to believe that they would be better off than in arbitration. In fact, employees actually prevail more often in arbitration than in court. As expected, successful plaintiffs obtain larger awards from judges and juries, but as a group recover more in arbitration.⁹² In response to the “repeat player effect," which leads to the "repeat arbitrator effect," supporters of mandatory employment arbitration believe that the repeat player effect theory is based on the belief that a repeat player (the employer) chooses the same arbi- trator in several arbitration cases and therefore builds a relationship with the arbitrator, causing the arbitrator to rule in the repeat player's (the employer) favor. The research found no support for this theory. In the 200 cases studied, there were only two cases involving a second meeting between the same arbitrator and employer. On the employee side, it may also be argued that attorneys for grievants may become repeat players as more plaintiff attorneys accept employment arbitration assignments and as the number of employment arbitration cases grow. Public Policy Implications for the Future A Comparison of Decisions by Employment Arbitrators, Labor Arbitrators, and Jurors in Employment Termination Cases. In a study of 225 employment arbitrators, 200 labor arbitrators, and 112 jurors from a federal district court, the arbitrators and for- mer jurors were asked to participate in a fairly extensive decision-making exercise that Copyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202 578/774 >
Transcribed Image Text:| Virtual Campus 9:24 PM Mon Feb 26 |||| = B 578 PART 3 ● Administering the Labor Agreement ●●●● QAA once or twice in a lifetime. First, if the employer selects the arbitrator and pays the arbi- trator for his or her services, the arbitrator may feel the pressure to rule in favor of the employer in order to be selected in future cases. For all practical purposes, the employer and the arbitrator are the "repeat players." Second, in the selection of the arbitrator, even when both parties participate in the selection, unrepresented employees have little infor- mation on which to base their selection. Even when an employee has legal counsel, the attorney may or may not have access to useful information about the arbitrator. In com- parison to a unionized setting, nearly all international unions and the American Federa- tion of Labor-Congress of Industrial Organizations (AFL-CIO) have research staff who can obtain evaluative information about arbitrators that would be useful in selection. Third, "repeat player" employers have certain strategic advantages because they have an institutional memory. Employers can keep records about the disposition of prior cases of the arbitrator; the unrepresented employee has no comparable resource. Because the union has a continuous relationship with the employer through the collective bargaining agreement, the union gains an institutional memory and becomes a "repeat player” in the arbitration process. 91 Supporters of Mandatory Employment Arbitration. Although many scholars and professional groups like the NAA, and governmental agencies, like the EEOC, have con- demned mandatory arbitration arrangements, Theodore J. St. Antoine, the former presi- dent of the National Academy of Arbitrators, believes that mandatory arbitration may be a “blessing in disguise”. As a practical matter, mandatory arbitration may offer persons with small monetary claims a better opportunity to secure a remedy than a traditional legal action. The EEOC is not the answer because it is underfunded and too overloaded with work to try anything other than major cases. St. Antoine argues that arbitration is private, cheaper, faster, and more informal than court litigation which is a public forum. As a result, lawyers are more willing to assist a client in an arbitration proceeding when they would not be willing to devote the time and effort to prepare a federal court appearance. Further, without a lawyer, employees may make a reasonable presentation on their own or with the assistance of a fellow employee in a much less intimidating atmosphere of arbitration. St. Antoine fur- ther argues that if the claimant sues in court, there is no reason to believe that they would be better off than in arbitration. In fact, employees actually prevail more often in arbitration than in court. As expected, successful plaintiffs obtain larger awards from judges and juries, but as a group recover more in arbitration.⁹² In response to the “repeat player effect," which leads to the "repeat arbitrator effect," supporters of mandatory employment arbitration believe that the repeat player effect theory is based on the belief that a repeat player (the employer) chooses the same arbi- trator in several arbitration cases and therefore builds a relationship with the arbitrator, causing the arbitrator to rule in the repeat player's (the employer) favor. The research found no support for this theory. In the 200 cases studied, there were only two cases involving a second meeting between the same arbitrator and employer. On the employee side, it may also be argued that attorneys for grievants may become repeat players as more plaintiff attorneys accept employment arbitration assignments and as the number of employment arbitration cases grow. Public Policy Implications for the Future A Comparison of Decisions by Employment Arbitrators, Labor Arbitrators, and Jurors in Employment Termination Cases. In a study of 225 employment arbitrators, 200 labor arbitrators, and 112 jurors from a federal district court, the arbitrators and for- mer jurors were asked to participate in a fairly extensive decision-making exercise that Copyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202 578/774 >
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