Two of the most common misconceptions are (1) arbitrators “split the baby” when making decisions so as to not offend either of the parties, and (2) arbitration prevents employers from firing people. A recent objective, empirical study of over 2000 arbitration decisions shows both these notions to be untrue.
Arbitration decisions are made according to the merits of each case, based upon the presentations of both parties to the dispute. In the study of public sector arbitration decisions in Minnesota between 1982 and 2005, arbitrators fully upheld employer disciplinary decisions in over 50 percent of cases. For teachers, discipline was upheld 57 percent of the time. In only about 20 percent of the cases were teachers reinstated with the discipline being fully overturned. This suggests that compromise or “split” decisions occurred, at most, approximately 20 percent of the time.
The study also examined the reasons cited by arbitrators in their decisions to modify or overturn discipline imposed by employers. For evidence of the underlying basis of those decisions, the researchers performed a detailed review of the arbitrators’ written findings. Common findings include the employer’s failure to give notice to employees of what conduct is prohibited and disparate treatment for the very same alleged violations.
A more recent analysis of arbitration decisions overturning the discipline of police officers in Oakland, California, revealed a multitude of failures on the employer’s presentation that led arbitrators to overturn or modify the discipline.
Another misconception about arbitrators as it relates to labor management arbitration is that arbitrators favor “repeat users”. This criticism simply does not apply to an arbitration system that is established bilaterally and where both parties have an equal voice in selecting the arbitrator. In contrast, there currently exist many consumer arbitration systems where one party selects the arbitrator and one party unilaterally establishes the rules. Moreover, the “Code of Professional Responsibility for Arbitrators of Labor Management Disputes” prohibits any kind of favoritism. Section 1.A.2 of the Code states, “An arbitrator must be as ready to rule for one party as for the other on each issue, either in a single case or in a group of cases. Compromise by an arbitrator for the sake of attempting to achieve personal acceptability is unprofessional.”