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dissertation entitled

The Impact of Arbitrator Biographical
Characteristics on Discharge Awards

presented by

Lesiie F. Corbitt

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MSU Is An Affirmative Action/Equal Opportunity Institution

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE IMPACT OF ARBITRATOR BIOGRAPHICAL
CHARACTERISTICS ON DISCHARGE AWARDS

By

Leslie F. Corbitt

A DISSERTATION

Submitted to
Michigan State University
in partial Iulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

College of Social Science

1990

$05545}

ABSTRACT

THE IMPACT OF ARBITRATOR BIOGRAPHICAL
CHARACTERISTICS ON DISCHARGE AWARDS

BY

Leslie F. Corbitt

The selection of the arbitrator to hear a dispute is an important decision. To
select the arbitrator most likely to sustain its position, each party evaluates arbitrators'
personal attributes. These include biographical information or characteristics defining
the arbitrator’s qualifications and making his/her identity unique. This study examines
the impact of selected arbitrator biographical characteristics (age, education, experience,
occupation, residence location, professional affiliations, and gender) on discharge
awards.

Two decision models were tested. The discharge award was coded either
“Penalty-sustained“ or “Penalty-revoked“ in the two-category decision model. The three-
category decision model further compartmentalized the Penalty-revoked classification
into “Penalty-revoked“ and “Penalty-modified." The traditional, statistical approach
(p 5 .10) and a practitioner-oriented approach (p > .10) were used to test the models.

Each full model was reduced using Pearson's correlation matrix results in
conjunction with saturated, hierarchial log-linear model results. Age, experience
(caseload), education, and professional attiliation (NAA membership) were retained as
the independent variables testing the two-category model. Age, experience, and

residence location were selected for testing the three-category model.

The results of the LOGrT analysis can be summarized as follows:

(1) The traditional, statistical approach does not indicate biographical
characteristics are predictive of discharge awards (no variable was
significant at p _<_ .10 in either model).

(2) The practitioner-oriented results suggest several biographical
characteristics may be important in the reinstatement remedy for the
three-category model. Age, experience, and residence location displayed
significant interaction effects in the three-category model, indicating that
“blends" of biographical characteristics may be more important than main
effects. The two-category model did not yield any significant effects.

The findings are discussed in terms of their implications for the two approaches.

Specific suggestions are made to employers and unions seeking even a slight
advantage through the use of arbitrator biographical characteristics in selection.
Methodological issues are addressed concerning future research in this area. Further
research into the three—category, or possibly a four-category, model is warranted based

on the practitioner-oriented approach.

Copyright by
LESLIE F. CORBITI'
1990

ACKNOWLEDGMENTS

I will always treasure the relationships established with the faculty, staff, and
students during my apprenticeship at Michigan State University. There are numerous
people who stimulated my continued interest in completing the dissertation with their
constructive criticism and words of support and encouragement.

Professor Jack Stieber has been, and continues to be, a most patient individual
whose insights and comments added greatly to this research. He is the person most
responsible for keeping this study on the proper track and ensuring that l was focused
on the correct issues.

I also am greatly indebted to my committee chairman, Professor Richard Block.
His observations and suggestions have consistently resulted in marked improvements
in the quality and academic rigor of this dissertation. Additionally, I would like to thank
Professors Block and Stieber who suggested the general topic area and were
instrumental in developing the research question and securing the database.

My grateful thanks and appreciation are extended to Professors Daniel Kruger
and Ira Polley for their participation on my committee and for their cogent comments
and willingness to devote considerable time to this study.

Without the assistance of Cheryl Cutrona, Robert Maraldo and Cheri Lockett of
LRP Publications, this dissertation could not have been completed. I am extremely

grateful to these three individuals who primarily were responsible for furnishing the

V

discharge awards and the available biographical information for the arbitrators included
in the sample.

Professor James Barnes’ assistance proved invaluable for reading the manuscript
and making editorial and methodological suggestions. Professors Donna Davis and
Don Davis were excellent role models and willingly supplied moral support and a swift
kick when necessary.

Nora Harrison did an excellent job in typing the manuscript quickly and
accurately. Her repeated ability to meet my strict time constraints is greatly appreciated.

lam immeasurably indebted to my parents, Jim and Judy Corbitt, and my sister,
Lauren Corbitt, who were safe havens in times of doubt and frustration. Their love,
patience, understanding, and support during the completion of my coursework and
dissertation always will be greatly cherished.

Finally, I must be thankful to my dogs, Moose and Mama, and my cat, Charles,

who demand that I "earn a living" so they can live in style.

vi

TABLE OF CONTENTS

CHAPTER I ................................................ 1
INTRODUCTION ........................................ 1
LIMITATIONS OF PRIOR RESEARCH ......................... 2
JUSTIFICATION OF FURTHER RESEARCH ..................... 4
RESEARCH OBJECTIVE .................................. 6
DESCRIPTION OF CHAPTERS .............................. 6

CHAPTER ll ................................................ 8
LITERATURE REVIEW .................................... B
BIOGRAPHICAL CHARACTERISTICS .......................... 11

Basic Studies of Biographical Characteristics ............... 12
Age of the Arbitrator ........................... 12
Education of the Arbitrator ...................... 14
Experience of the Arbitrator ...................... 16
Occupation of the Arbitrator ..................... 1B
Geographical Proximity or Residence Location of the

Arbitrator .............................. 20
Professional Affiliation of the Arbitrator .............. 21
Gender of the Arbitrator ........................ 22
Profile of the Arbitration Profession ................. 23

Biographical Characteristics and Selection ................. 27
Summary of Biographical Characteristics and Selection . . . 35

Biographical Characteristics and Arbitrator Behavior .......... 37
Summary of Biographical Characteristics and Arbitrator

Behavior .............................. 51

CHAPTER III ............................................... 53
METHODOLOGY ....................................... 53
DATA ............................................... 53

The Sample ...................................... 55
THEORETICAL EXPECTATIONS ............................. 56
Dependent Variable ................................ 56
Independent Variables .............................. 57

Age ...................................... 57

Experience ................................. 56

Education .................................. 56

Residence Location ........................... 59

Professional Affiliation .......................... 59

vii

Occupation ................................. 60

Gender .................................... 60

Research Hypotheses ............................... 60

ANALYSIS ............................................ 61
SUMMARY ........................................... 63
CHAPTER N ............................................... 64
ANALYSIS AND INTERPRETATION OF DATA .................... 64
POPULATION AND SAMPLE CHARACTERISTICS ................. 64
PRELIMINARY ANALYSIS .................................. 69
Two-Category Decision Model ......................... 71
Three-Category Decision Model ........................ 73

ANALYSIS ............................................ 77
CHAPTER V ............................................... 65
SUMMARY, CONCLUSIONS, AND IMPLICATIONS ................. 85
Summary ....................................... 85
CONCLUSIONS AND IMPLICATIONS ......................... 87
Suggestions for the Traditional, Statistical Researcher ......... 67

Suggestions for the Practitioner ........................ 91

LIST OF REFERENCES ........................................ 94

viii

LIST OF TABLES

Table 2.1 Arbitrator Ranking 01 Ten Factors Deemed Most Important In Arbitrator

Selection ............................................. 31
Table 2.2 Zero-Order Correlations' And Regression Coefficients' Directions For

Selected Arbitrator Characteristics With Caseload ................. 36
Table 2.3 Combined Effects Of Arbitration Experience And Age On The

Modification And Revocation Of The Discharge Penalty ............. 45
Table 4.1 Distribution Of Awards For Population And Sample ............. 65
Table 4.2 Distribution Of Cases By Year For Population Sample ........... 66

Table 4.3 Pearson Correlation Coefficients Using Two-Tailed Test For Two-
Category Decision Model ................................. 72

Table 4.4 Significant Interactions Among Age. Education, Experience, Caseload.
NAA Membership, And Occupation ........................... 74

Table 4.5 Pearson Correlation Coefficients Using Two-Tailed Test For Three
Category Decision Model ................................. 75

Table 4.6 Significant Interactions Among Age, Education. Experience, Caseload,
NAA Membership. And Residence Location ..................... 77

Table 4.7 Significant Logit Estimates For Main Effects Of Discharge Awards For
Two- And Three-Category Models ........................... 78

Table 4.8 Significant Logit Estimates For Interaction Effects Of Discharge Awards
For Two- And Three-Category Models ......................... 80

Table 5.1 Distribution Of Awards Among Individual Arbitrators For Three-
Category Awards ....................................... 89

CHAPTER I
INTRODUCTION

Since arbitration is normally the terminal step of the grievance process in
employer-union labor agreements, the determination of the arbitrator to hear the dispute
is of considerable importance to the parties involved. Apart from the testimony,
evidence, and arguments presented in the actual hearing, the parties' greatest likelihood
of influencing the ultimate decision is through the mutual selection of an arbitrator.
Although they may not use the same criteria in arbitrator selection, the employer and
union decision-making processes have one point of commonality - each side desires
to present its case before an arbitrator believed “likely to support a particular position
on the basis of the facts and circumstances involved“ (Dworkin, 1974, p. 200).
Research examining selection criteria and arbitrator decisions is now becoming
practicable because of the various private reporting services, data archives, and broad
data bases that have come into existence in the last ten years. This study examines
the relationship between the biographical data available to the parties in arbitrator
selection and arbitrator awards in discharge cases.

Although the personal attributes considered desirable In an arbitrator may vary
from advocate to advocate, each party gathers as much information as possible about
potential arbitrators. In selecting the arbitrator, specific criteria such as these may be

used: personal experience with the arbitrator, the arbitrator’s published awards

2

(especially on the issue In dispute or related issues), the files of private reporting
senrices, the prior experiences and impressions of other advocates who have used the
arbitrator, and the biographical information available on the arbitrator (Alexander, 1958;
Dworkin, 1974; Hilgert, 1978; Shawe, 1980). Biographical information refers to the
multitude of personal characteristics and attributes (such as education, experience, and
age) which define the arbitrator's qualifications and make him/her uniquely different from
other arbitrators. Such characteristics, therefore, often play a crucial role in selection.
In many cases the parties’ lack personal experience with the arbitrator; in other
instances the arbitrator’s inexperience or limited publishing record (decisions) result in
inadequate information about the arbitrator. In these situations the parties must rely to
a greater extent on the biographical information provided. Alternatively, the desire to
select an arbitrator with a specific blend of biographical attributes may be the principal
concern. Thus, evaluation of the available biographical information becomes important

to both parties.

LIMITATTONS OF PRIOR RESEARCH

In spite of the importance of the selection tools used by the parties, a dearth
of research exists on the possible relationship between biographical characteristics and
either arbitrator selection or decisions. Further research is timely and necessary. Many
of the published studies were conducted before the late 1970s (Bankston, 1977; King,
1971 a, 1971b; Petersen, 1970; Petersen and Rezler, 1977; Primeaux and Brannen, 1975;
Rezler and Petersen, 1978; Westerkamp and Miller, 1971). While they constitute a
valuable foundation for current research, they were neither extensive nor exhaustive.

They also had significant weaknesses. These studies fundamentally were pioneering

3

ventures that tended to be of a qualitative nature or had a very limited scope of
analysis. Only recently has more sophisticated research aimed at exploring the
relationship between arbitrator behavior and biographical data been pursued (Block and
Stieber, 1987; Heneman and Sandver, 1983; Nelson, 1986).

Conclusions of these older studies are also questionable since the instruments
used to collect the data did not possess the methodological rigor required today. For
example, Westerkamp and Miller (1971) used a film of a mock arbitration case designed
to lead viewers to a specific conclusion. Two experienced and two inexperienced
arbitrators saw the film and wrote their decisions based on the film. Employer and
union advocates were then asked if they could differentiate between the awards of the
experienced and inexperienced arbitrators. The small number of participants and the
training and explanatory presentation of the issue in the film dictate that conclusions
based on such findings must be very narrowly drawn and limited in application.

In prior research the data using arbitration awards were not representative.
Many researchers have noted the inherent weaknesses of using published awards as
the sole data source in studies of this nature (for example, see Holly, 1957; Jones 1970;
Primeaux and Brannen, 1975; Stieber, Block, and Corbitt, 1985). The data for the
current study are more representative since they include a large number of both
unpublished and published discharge awards.

The data in previous research also have been limited in scope and sample size,
weakening their possible applications. Sample size in prior research has been strongly
criticized (see Heneman and Sandver, 1983). Often researchers in these past studies
have based their conclusions on a single or limited number of cases, leading readers

to question the generalization of the results. This study's data are less susceptible to

4

the scope limitation because they are from a nationwide population and should provide
a good cross-section of discharge cases and their characteristics. The current
research's sample size is much larger than any other study in this area to date.

Few studies focus on the predictive aspects of using biographical characteristics.
Instead, researchers have generally considered an arbitrator's biographical
characteristics in terms of selection. In this study discharge cases are used to
determine which, if any, biographical characteristics are predictive of the tendency to
sustain, revoke, or modify the penalty. If an arbitrator‘s set of biographical
characteristics can be classified as falling into one of these three categories, it indicates
a new avenue for exploring the selection question. This is a different, but related,

perspective of arbitrator selection.

JUSTIFICATION OF FURTHER RESEARCH

Criteria used or considered by the parties in arbitrator selection must be
explored systematically and thoroughly. One argument is that the arbitrators are
selected based on the biographical characteristics the parties believe are important
either in choosing the 'right“ arbitrator or in influencing the arbitrator's philosophy and
subsequently the award (Alexander, 1958; Briggs and Anderson, 1980; Dworkin, 1974;
Gross, 1967; Heneman and Sandver, 1983; Hilgert, 1978; Manson, 1959; Primeaux and
Brannen, 1975; Rezler and Petersen, 1978; Roth, 1980; Ryder, 1968; Shawe, 1980;
Stein, 1955). A principal contribution of the study lies in the support or lack of support
it lands to this perception.

Practitioners should be interested in the results of this study for two reasons.

First, If decisions in discharge cases can be linked with personal characteristics, .

5

practitioners will be able to improve the probability of success by using specific
characteristics in selection. Thus, the biographical characteristics approach may have
some credence. Second, if the results show there is no relationship between
background characteristics and awards, it casts doubt on the efficacy of the time and
money spent scrutinizing biographical information in the selection process. It also
provides vindication of those researchers and practitioners who claim that only the facts
and circumstances of a particular case determine the case's disposition and therefore
the parties are using arbitrator characteristics improperly (see Dworkin, 1974; Heneman
and Sandver, 1983; Primeaux and Brannen, 1975). With either result, practitioners
should gain valuable insights into the selection process.

New research in arbitrator selection is imperative. The social, economical, and
political climates have changed dramatically since the 1970s and will continue to be
dynamic influences in shaping the nature of arbitration. The characteristics of persons
entering the arbitration profession and of the arbitration process itself have altered
slowly and continuously over the years. For example, the influx of attorneys as
advocates and arbitrators is undeniably responsible for much of the formalization and
courtroom-type procedures now present in arbitration. Whether the decisions of
attorney arbitrators differ from non-attorney arbitrators and, if so, whether these
differences can be partially attributed to education and training is vital information for
the parties selecting an arbitrator. A pragmatic reason for new research from a union
perspective is the need to optimize selection criteria in a time of decreasing
membership and limited financial resources. Therefore, the ability of either an employer
or union advocate to gain an advantage by properly evaluating selection criteria is of

importance.

6
For the reasons noted above research into one aspect of arbitrator selection, i.e.,
examining the relationship between arbitrator awards and biographical characteristics,
is being conducted. In the remainder of this section the research objectives are

specified and the content of the chapters described.

RESEARCH OBJECTTVE

The major objective of this research is to determine to what extent, if any,
biographical variables are associated with the following categories of arbitrator decisions
- 'PenaIty-sustained' (employer position upheld), 'Penalty-revoked' (union position
upheld), or “Penalty-modified" (union and employer positions upheld in part, e.g.,
reinstatement with partial or no back-pay). Specifically, the biographical variables
examined will be those most commonly cited by researchers as influential in arbitrator
acceptability issues, important selection criteria, or significant with respect to the award
aspects of arbitration cases. They include the arbitrator's (1) age, (2) education or
professional background, (3) occupation, (4) gender, (5) professional affiliations, (6)

experience, and (7) residence.

DESCRIPTTON OF CHAPTERS
In Chapter II the prior research on arbitrator biographical data as related to
arbitrator acceptability and behavior is summarized. The major hypotheses tested in
this study are presented in Chapter III in addition to a description of the data and the
methodology used. The results of the statistical analyses are presented in Chapter N,

and the support or lack of support for each hypothesis is discussed. This final chapter

7

examines the theoretical and applied implications of the research and the possible

directions of future research.

CHAPTER II

LITERATURE REVIEW

In order for the reader to appreciate more fully the impact and importance of
selection criteria, this chapter will examine several of the major reasons behind the
parties' attempts to choose the “proper“ arbitrator and then review the literature relating
to the biographical characteristics of arbitrators.

Researching a potential arbitrator’s biographical characteristics includes
evaluating as many of the arbitrator's personal attributes as are available. Given the
importance of the arbitrator to the final outcome in the grievance process, very little
theory and evidence has been generated in this area. Gross hypothesizes that
arbitrators are influenced by their personal philosophies and experiences:

Consciously or unconsciously, arbitrators bring ideas

about ethics, man, law, private property, economics, and

so forth to their cases. Although he might be unaware of

the existence of such a frame of reference, [the ideas]

held by the arbitrator subtly influence his selection and

organization of what he decides are “relevant‘ data, his

emphasis of certain evidence and de-emphasis of other,

his acceptance of a certain procedural method, his attitude

toward prior arbitration awards, and his literal or broad

reading of the contract. (Gross, 1967, p. 55).
He argues that selection analysis should include not only an investigation of the
arbitrator's professional, social, and educational backgrounds, but also an examination
of other arbiter biographical characteristics which would aid the parties In

understanding his/her philosophy and thinking.

9
Similar thinking has been pursued in examining decision-making in the political

science arena. Frank’s (1978) judicial paradigm -

 

 

 

FACTS X RULES = DECISIONS

 

 

 

 

 

 

 

 

 

is applicable to the arbitration setting as long as it is recognized that M the arbitrator
mrceives the facts determines how FACTS are interpreted and RULES applied. In
theory arbitrators, presented with the same facts, testimony, evidence, etc., would render
identical awards. In the real world, however, arbitrators have very divergent
backgrounds. Unlike physicians, attorneys, and accountants who receive a basic,
uniform grounding in their disciplines, arbitrators enter their profession in different ways
and with widely varying degrees of training and expertise. A small minority of arbitrators
enter the profession after receiving training in the clergy or in industrial engineering,
but almost 60% of all arbitrators have legal backgrounds while an additional 20% are
educators (Bernstein, et. al., 1957, 1964; Brown, 1976; Herrick, 1982; lGng, 1971b;
McKerey and Rogers, 1971; Jensen, et. al., 1959; Petersen and Rezler, 1977). Because
of this diversity, ten arbitrators with different backgrounds, confronted with an identical
factual situation, will not perceive it in a like manner and therefore may not reach the
same conclusion. Therefore, a major goal of each party‘s selection criteria or analysis
is to gain insights into the potential arbitrator's philosophy and thinking or to ascertain
the arbitrator’s “frame of reference," thereby anticipating how the arbitrator might view
the factual situation of their dispute and predicting the arbitrator's award.

Another reason for the importance of proper selection criteria is that most labor

agreements provide for 'final and binding“ arbitration. Unless a party can enjoin

10

implementation of an award under a limited right of judicial review, both parties are
bound by the arbitration decision for the remainder of the life of the agreement.’ One
result of this is that neither disagreement with the arbitrator’s findings nor economic loss
suffered as a consequence of an adverse decision is sufficient grounds for judicial
review. The merits of the case are not considered by the courts. Only questions of
law - whether implementation of the award would lead to a contravention of the law,
whether the arbitrator has misinterpreted judicial or agency rulings, or whether the
arbitrator has exceeded the authority granted him/her in the labor agreement - are
considered.

The economics of the dispute are also of considerable interest. It is reasonable
to believe that arbitrators deciding issues involving large sums of money would undergo
greater scrutiny than would those hearing cases concerning relatively de minimis sums.
For example, in highly technical, manufacturing industries such as the chemical or oil
industries, cases determining the amount of work that can be done by outside
employers may quite easily run into tens of thousands of dollars. A case resolving the
amount of severance pay due the workforce of a large, permanently closed factory
could run into the hundreds of thousands of dollars. Both the employer and union
representatives responsible for selecting arbitrators in such highly significant disputes
will strive to locate an arbitrator with whom they feel comfortable.

The issues and principles involved may also affect the weighting of the selection
criteria. The parties may believe that certain issues, such as management's rights and

complex contract provisions, require arbitrators of a certain 'type" or training. They may

 

’ The NLRB right of review can be exercised pursuant to either the Spielberg or
Collyer doctrines under specific conditions involving interpretation of the Labor-
Management Relations Act.

11

also believe that emotionally charged issues which may have stigmas attached (such
as theft, falsification, or substance abuse) or cases which are potentially precedent
setting need arbitrators of different backgrounds than does a case concerning a minor
disciplinary action.

The above is not intended to be an exhaustive list of the reasons to research
an arbitrator's background but is intended to present a few of the more consequential
reasons for concerns with arbitrator selection. Many factors external to the case may
contribute to the direction of the award. Some of these factors are community values
and standards, increasing governmental intervention in the arbitration process through
laws and court and agency rulings, the influence of attorneys as advocates, the use of
briefs and transcripts, the economic climate, the industry, the size of bargaining unit,
and the employer and union involved. Many of these extrinsic variables, however, are
outside the scope of the parties’ power while the selection of the arbitrator is one
variable firmly within their grasp. The parties attempt to select an arbitrator whose
biographical information or past performance indicates an understanding and
identification with the principles intrinsic to the case. Both the employer and union thus
attempt to predict the arbitrator's reaction to their particular case by using proxy

variables.

BIOGRAPHICAL CHARACTERISTICS
There is evidence indicating that an arbitrator can stimulate strong positive or
negative value-system responses in the parties, thus affecting their perceptions and
evaluation of that arbitrator (Crane and Miner,1988; see also, Bloom and Cavanagh,

1986). Several attempts have been made to duplicate the process of arbitrator selection

12

in various ways and with conflicting results. Surveys and questionnaires have provided
insights into arbitrator characteristics and the determinants of arbitrator acceptability.
Researchers also have analyzed arbitrator behavior in terms of value differences
between arbitrators, experience, or general biographical characteristics. In the following
sections the focus will be on developing a biographical profile of arbitrators today,
looking at the importance of biographical characteristics in selection and acceptability,
and reviewing the studies which examined the relationship between arbitrator decisions

and biographical data.

Basic Studies of Biographical Characteristics

Background or biographical characteristics are usually supplied to the parties by
the agency providing the panel for arbitrator selection. When the parties examine an
arbitrator's attributes, competence is an implicit consideration. Competence in
experienced and novice arbitrators may be evidenced by any one or combination of
these or other characteristics deemed important by the parties. The parties may weight
the same attribute differently depending upon their evaluations of that particular
characteristic’s value in predicting potential outcomes. In the literature seven
characteristics are most often cited: age, education, experience, occupation,

geographical proximity or residence location, professional affiliation, and gender.

Age of the Arbitrator
Entry into the arbitration profession and NAA membership traditionally have been
accomplished by Individuals at least forty years of age. In the early 1950s the average

NAA arbitrator's age was 49.7 years (Bernstein, et. al., 1957). By 1971 this figure had

13
risen to fifty-seven to fifty-eight years old (IGng, 1971 b; McKelvey and Rogers, 1971).
Simultaneously, the percentage of NAA arbitrators under forty years old decreased from
11.6% (Bernstein, et. al., 1957) to 1.8% (McKerey and Rogers, 1971) while the
percentage of arbitrators at least sixty years of age increased dramatically from 16.1%
(Bernstein, et. al., 1957) to 41.9% (McKerey and Rogers, 1971).

The average age of arbitrators as a group has not changed greatly since that
time. In 1977 the average experienced arbitrator was 57.9 years of age (Petersen and
Rezler, 1977). Five years later the mean age had increased slightly to 58.7 years, and,
although most arbitrators were between forty-seven and seventy-five years old, one-
fourth of all arbitrators fell within the ages of forty to fifty-five years. (Herrick, 1982).
One aspect of the age distribution not noted in previous research, however, was the
existence of bimodal points at fifty-seven and; sixty-five years of age.

The most recent NAA study found the average age of its members to be 59.2
years. The distribution, consistent with the studies prior to the mid-1970s, was heavily
skewed toward the older arbitrator. Only five percent of the arbitrators were under forty,
while almost eighty percent were at least fifty years old. Additionally, nineteen percent
of the arbitrators were at least seventy years old (Dunsford and Murphy, et. al., 1985).

According to Sprehe and Small (1984), non-NAA arbitrators were more evenly
distributed among the age groups. Younger arbitrators remained a scarce commodity
with only 11.4% being under forty years old. Less than seventy percent of the
arbitrators were fifty or older, while seventeen percent were seventy or older. Contrary
to the NAA membership, however, non-NAA arbitrators under fifty years old represented

a subaantially larger proportion of the total.

14

Education of the Arbitrage;

Arbitrators have always been well-educated. Whether defined as years of
schooling or as either degrees held or highest degree obtained (including multiple
degrees), arbitrators have at least a high school degree. By 1971 most arbitrators had
gone to college and many had received advanced degrees. At that time a bachelor's
degree in the field of social science was the choice of the majority. A smaller group
pursued further education at either graduate or law school. A law degree was preferred
although graduate or Ph.D. degrees in the social science area were greatly treasured
(Bernstein, et. al., 1957, 1964; Jensen, et. al., 1959; McKerey and Rogers, 1971).

King (1971b) found the legal profession to be the dominant entry portal into the
arbitration profession. The majority of arbitrators had at least one degree, with 68.9%
holding law degrees. For younger arbitrators (under fifty years old) this was especially
true; 85.7% of them had law degrees. In King’s view this was partially attributable to
three factors: the increasing complexity of labor contracts and the law, the uniform
training attorneys receive, and the inclination of some parties toward legalistic and
judicial type hearings which attomey-arbitrators would find comfortable.

Later studies confirmed the shifting away from Ph.D.s toward law degrees.
Brown (1976) found that although arbitrators were consistently pursuing their
undergraduate and graduate degrees at schools located in the East and Midwest, the
number of younger non-attomey professors educated in these areas was much lower
than that of older non-attomey professors (forty-five or older). Attorneys and Professors
of Law were the predominant educational backgrounds. Petersen and Rezler (1977)

observed that legal careers continued to be the principal training ground of arbitrators.

15

Law degrees were held by 59% of the arbitrators, the remainder possessing other
professional qualifications to ensure continued acceptability.

Lawson’s findings (1981) supported the trend toward additional education and
training. All but one of the thirty participating arbitrators had completed undergraduate
degrees, while 90% held either a graduate degree (47%) or a law degree (43%). Thus,
IGng's prediction (1971b) that the demand for highly qualified arbitrators, cross trained
in law and business, would increase as arbitration matured and grew more
sophisticated appeared to have been fulfilled within ten years.

Herrick (1982) discovered slightly different results. While multiple degrees were
common, the single most often occurring level of education was not the law or
Professor of Law degrees, but the Ph.D. The influence of the legal profession in
education was again evident. A law degree, either singly or in combination, occurred
in slightly over half of the sample. An economics degree, singly or in combination,
was claimed by one-fourth of the arbitrators. As in previous studies, cross training
between law and other disciplines was becoming more common. Almost ten percent
declared cross training between economics and law.

By 1984, over 86% of the NAA arbitrators were educated in law, economics, or
labor relations, or had received cross-training within these areas. Approximately 58%
held law degrees, while 28% held economics degrees (Dunsford and Murphy, et. al.,
1985). Almost fifty-five percent of the non-NAA arbitrators held law degrees and were
slightly more likely than NAA arbitrators to have business administration backgrounds

(Sprehe and Small, 1984).

1 6
Eyerience of the Arbitrator I

Experience typically overlaps with occupation and is often reflective of education.
”Real world" experience, experience as an arbitrator, full-time versus part-time experience
as an arbitrator, number of cases heard, and years as an arbitrator are the most
frequent measures of experience. Prior experience usually includes past occupations
in union, employer, and government positions. Researchers have also attempted to
discern the minimum standards of experience used in determining acceptability. In this
regard caseload is often used as a determinant of experience. It is clear from the
literature that the advocates do not agree on the dimensions that define “experience“
and that the definition varies from one practitioner to another.

According to four NAA-sponsored studies conducted between 1954 and 1971,
the experience of NAA arbitrators has remained relatively constant (Bernstein, et. al.,
1957, 1964; Jensen, et. al., 1959; McKerey and Rogers, 1971). During the 1960s
under 10% of the arbitrators gained labor relations experience from working within the
labor movement, while between 15% to 17% of the arbitrators had worked full-time in
labor relations positions for companies or employer associations or in the state or
municipal governments. Gaining labor relations experience through employment within
the Federal Government was prevalent among NAA members, although the occurrence
of this trait decreased between 1964 (74.9%) and 1971 (64.6%). Understandably, older
NAA arbitrators were replaced by arbitrators who were not employed by the Government
during World War II or the Korean War. Experience with the National War Labor Board
(NWLB) in World War II, the Wage Stabilization Board (WSB) of the Korean War, and
the National Labor Relations Board (NLRB) were the three most common forums for

obtaining labor relations expertise. I

17

The NAA findings were supported by lfing (1971b) who concluded that the older
the arbitrator, the more likely he/she was to have Government experience, especially
with the NWLB or WSB. Arbitrators under fifty years old were more often attorneys
(85.7%) who undoubtedly practiced or taught law before becoming arbitrators. These
younger arbiters were likely to have no Government experience, and one-third of them
had no labor relations experience prior to arbitration. Also, it Is noteworthy that, denied
the availability of NWLB or WSB experience, one-third of the younger group pursued
alternative avenues to gain the needed labor relations experience through working for
employers.

Brown (1976) also found experience in business or labor to be rare. If an
arbitrator did gain experience in the field, it was most likely from the employer rather
than the union or the Government. As expected, NWLB-trained arbitrators were the
oldest arbitrators and constituted a fairly large percentage of that age group.

In Lawson’s study (1981) at least two-thirds of the participants had served as
arbitrators, mediators, and fact-finders. Further, the mean arbitrator had completed
fifty awards during his/her career. On average, the arbitrator had seven years of
advocacy experience, and 13% had more than twenty years of such experience.

Herrick (1982) measured experience as years of service, which ranged from
one to forty years. The most frequently stated experience level was ten years. Ten or
fewer years of experience was reported by over half of the participants, while 14.2
years was the mean. The distribution of caseload as an indicator of experience did
not approximate the normal curve and had an extremely broad range, from an average
of 1 case per year to an average of 390 cases per year. The mean number of cases

per year was 35.9, while the median was 20.3 cases per year.

18
Over one-fourth of the NAA membership In 1984 had arbitrated for at least thirty

years. Nearly 18% were relative newcomers, having been arbitrators for ten years or
less (Dunsford and Murphy, et. al., 1985). The findings of Sprehe and Small (1984)
supported the view that NAA arbitrators were more experienced than non-NAA
arbitrators. Compared with non-NAA arbitrators, NAA members had higher caseloads,
greater arbitral experience, and were less likely to have gained labor relations

experience by working for management or unions.

Occugtion othhe Arbitrator

Occupation, experience, and education or professional background are the three
most interrelated terms used by researchers. Frequently, occupation is discussed in
terms of present occupation, full-time versus part-time arbitrators, and percentage of
time spent in another occupation. The majority of current arbitrators are either
educators and/or attorneys, leading to difficulty in clearly delineating between
experience, education, and occupation. As a result, the definitions of these three
characteristics as utilized by different researchers are not uniform, and comparisons of
findings are difficult.

In 1954 almost 59% of the NAA arbitrators were educators (Bemsteln, et. al.,
1957). Principally, these educators were teaching in the fields of either law or social
science. The second most popular alternative profession was the law practice, in which
almost one-fourth of the arbitrators participated. By 1964, arbitration accounted for one-
third of the arbitrator's time, while over 40% of his/her time was spent as an
academician (Bemsteln, at. al., 1964). Again, arbiter-educators tended to teach law or

social science. Outside of arbitration and university work, the law practice was one of .

19

the most important occupations. Arbitration as a full-time occupation was practical for
about one-fourth of the NAA arbitrators (McKelvey and Rogers, 1971). The remainder
were engaged in other professions, especially as educators or attorneys.2

In King’s study (1971b) the distributions within current occupation were different
based on the arbitrator's age. Over 57% of the younger arbitrators (under fifty years
old) were attorneys, followed distantly by educators (19%). Of those in education,
three-fourths taught law. Older arbitrators were less likely than younger arbitrators to
be attorneys or to teach law. Older arbitrators, however, were equally likely to be
attorneys (38.0% to 40.5%) or educators (36.8% to 38.4%). If an academician, the older
arbitrator was more likely to teach social science than law. Approximately one-fifth of
the arbitrators were full-time arbitrators, and this was the only major occupation in which
similarities in percentages appeared for the entire sample and across the age
categories.

Brown (1976) similarly concluded that a significant proportion of arbitrators in all
age groups were seeking legal training. Over 60% of the arbitrators under fifty-five
years old were attorneys or Professors of Law; this figure was closer to 45% for
arbitrators fifty-five years or older. Non-attomey professors constituted 20% to 25% of
the arbitrators forty-five years or older. Only 15% of the arbitrators under forty-five
years old were professors. Brown's findings differed from King’s results (1971b) in one
major area. Whereas in King's study age was not a factor in an arbitrator’s ability to

practice arbitration full-time, Brown found it an important consideration. Arbitrators who

 

2 Unless arbitrators meet the“grandfather" requirements of the Codes of Ethics of
the NAA, they neither may serve as advocates in labor matters nor be members of law
firms representing employers or unions in labor matters.

20

were fifty-five years or younger were much less likely to be full-time arbitrators (3% to
13%) than their older brethren (20%).

Petersen and Rezler (1977), Herrick (1982), and Dunsford and Murphy (1985)
reported different results than did lGng (1971b) and Brown (1976). Petersen and
Rezler’s study indicated that experienced arbitrators were full-time arbitrators In 32% of
the sample. Attorneys were second at 26% while 23% were university professors.
Herrick found the principal occupation to be educator (30%), followed closely by
attorneys at 25% and full-time arbitrators (24%). Dunsford and Murphy reported that,
for NAA members, the ability to be a full-time arbitrator was claimed by 46% of the
respondents. Further, over half stated they spent over three-quarters of their time in
arbitration. At the other extreme, there were 24% who did not arbitrate more than one-
fourth of their time. Of the 54% of the part-time arbitrators, the major occupations
were teaching (29%) and practicing law (13%). Attorneys devoted a substantially larger
amount of time to arbitration than did teachers. Approximately one-third of the
attorneys spent over half their time in this profession, while two-thirds of the teachers
did so. From these studies the principal occupations clearly were full—time arbitrator,

attorney, and educator.

Mammal Proximity or Residence Location of the Arbitrator

The two most common usages of this term refer to the (1) actual proximity to
a dispute as a factor in selection and (2) region of the country in which the arbitrator
has a stable residence or practice. Residence location is directed more at analyzing
the award aspect of the selection issue, while proximity is strictly used as a selection

criterion.

21

Herrick (1982) determined that most arbitrators’ residences or practices were
located in New York, California, and Pennsylvania. No arbitrators from Idaho
participated, and one arbitrator each from Montana, Nevada, North Dakota, South
Dakota, and Wyoming returned the questionnaire.

Dunsford and Murphy (1985) reported similar findings. New York, California,
Pennsylvania, Ohio, Illinois, Michigan, and Massachusetts accounted for almost 53% of
the NAA respondents. An additional 13.6% of the arbitrators resided in Wisconsin,
Missouri, Texas, and Kentucky. These eleven states represented almost two-thirds of

the arbitrators.

Professional Affiliation of the Arbitra_t_or

Professional affiliation usually refers to the arbitrator's association with the NAA,
the American Arbitration Association (AAA), or the Federal Mediation and Conciliation
Service (FMCS). Other professional organizations include the Industrial Relations
Research Association (IRRA), the Society of Professionals in Dispute Resolution (SPIDR),
and the American Bar Association (ABA).

The NAA is the most prestigious association in which an arbitrator can be a
member, and membership is a mark of success. In his sample l0ng (1971b) found that
almost 50% of the arbitrators under fifty years old were already NAA members. Age
and NAA membership appeared to have a direct relationship - the older the arbitrator,
the greater was the likelihood of NAA membership. Affiliation with AAA and FMCS was
an important characteristic with the successful arbitrators, more so with the older than

with the younger arbitrators.

22
NAA members also belonged to other professional organizations. IRRA (66%),

SPIDR (43%), and ABA (35%) memberships were the most common affiliations followed
by AAA and State Bar Association participation (Dunsford and Murphy, et. al., 1985).
Stieber, Block, and Corbitt (1985) found that, at least among Michigan arbitrators,
there may be a difference in the denial rates for NAA and non-NAA arbitrators. They
found that NAA arbitrators were more likely to reinstate a discharged employee than

were non-NAA arbitrators?

Gender of the Arbitrator

Acceptability and selection are both crucial questions with regard to women
being accepted members of the arbitration profession. Surveys normally report the
percentage of female arbitrators in the sample, and some researchers have looked at
whether a difference exists between the awards of male and female arbitrators. As
greater numbers of women have entered the profession in the last few years, there
has been a corresponding interest in this variable.

In studies by Lawson (1981), Herrick (1982), and Sprehe and Small (1984) very
different rates of female participation were observed. Lawson, examining the issue of
arbitrator acceptability, had a high response rate of 14% by female arbitrators who
were clearly concerned about their acceptability to the parties. Herrick's research was
somewhat underrepresented with only two percent of the sample being female. Sprehe
and Small found that 5.1% of the NAA and 4.6% of the non-NAA arbitrators were

women.

 

3 This was a surprising finding that runs counter to the findings of other studies.
It is most likely reflective of the sample, and replication of the results are doubtful.

23

One of the first attempts to statistically examine sex-related questions was by
Zirkel (1983). Almost seven percent of the sample was female, indicating they were
becoming more acceptable to the parties. In examining the relationship between sex
and case outcome, Zirkel found no significant differences.

Using undergraduate students as arbitrators, Bigoness and DuBose (1985)
reached a similar conclusion. They found that, although male and female decisions
concerning a discharge case involving the alleged consumption of an alcoholic
beverage at the grievant’s work station were not significantly different, females viewed
the offense as somewhat less serious than did males.

A small sample of male and female NAA arbitrators indicated they believed NAA
membership made it easier to succeed as an arbitrator. Only one-third of the females
and slightly over one-third of the males thought there were few or no barriers for
women. Over one-third of the females believed discrimination by the parties to be the
primary barrier to success as an arbitrator. Almost one-third of each group felt that
discrimination, whether called “conservatism," 'chauvinism,‘ ‘traditionalism,’ or simply
I'narrow-mindedness" operated against the selection of female arbitrators (Petersen and

Katz, 1988).

Profile of the Arbitration Profession

The basic characteristics of arbitrators as a group have changed dramatically
during the last forty years. In 1951 Warren and Bernstein found that, even in the early
days of labor arbitration, experienced employer and union representatives and
arbitrators possessed a strong desire to use professional arbitrators, i.e., those people

making their living primarily from arbitration. Arbitrators from the attorney and educator

24

professions were also highly desirable. This study was a precursor of the future trend
in arbitration - educators and attorneys were to become the dominant sources of
arbitrators.

The divergent paths individuals utilize to gain access to the arbitration profession
and the slow specialization of arbitration over the last forty years are obvious. Women
represent 2% to 14% of the samples studied, and preliminary results indicate no
differences In awards based on the arbitrator's sex. The average age of arbitrators is
approximately fifty-seven to fifty-nine years old, and entry into the profession is difficult
for individuals under forty years of age. For arbitrators under fifty years old, the major
difficulty is in gaining acceptance by the parties. Legal training may be one avenue that
eases entry into the profession since the parties are very conscious of the training
attorneys receive in law school. Arbitrators thus tend to be highly educated, the most
common academic training being in the fields of law, industrial relations, and/or
economics. Cross training between law and other fields is becoming prevalent as
contracts and arbitration become more complex and formalized. Consequently,
arbitrators predominantly practice law or are educators.

Based on these studies, it appears that over twenty percent of all arbitrators
arbitrate full-time.‘ The high concentration of part-time arbitrators may indicate that
many arbiters view arbitration as a supplement to their regular professions, such as the
practice of law or the teaching profession. Alternatively, it may be that for the most

part, these individuals are unable to support themselves as full-time arbitrators. For

 

‘ Relative to the non-NAA population, NAA arbitrators undoubtedly are able to
practice arbitration as a full-time profession at a much higher rate. Thus, the estimate
of twenty percent probably understates the actual status of arbitration as a full-time
profession.

25

younger, less experienced arbitrators, this is the most likely situation since acceptance
is a slow process. Finally, there are undoubtedly arbitrators who simply desire a part-
time arbitration practice regardless of the demand for their services.

NAA membership ls heavily concentrated among arbitrators fifty years or older.
Many senior members of the arbitration profession (at least 65 years old) typically
obtained their initial training through the NWLB or the WSB. while younger arbitrators
gained labor relations related experience through working for employers or in education.
The aspect that remains constant across age groups is the high incidence of NAA
membership as a symbol of success. In general arbitrators are becoming segregated
into two groups based on age: the older arbitrators are comprised mainly of individuals
with law and/or social science degrees, are equally likely to be educators or practicing
attorneys, and have considerable labor relations experience through the NWLB or the
WSB; the younger arbitrators have little or no Government experience but some
experience with employers, hold law degrees, and are much more likely to be attorneys
than educators. The obvious question is whether or not the experiences, training, and
education of these two emerging age groups are so different that they affect how the
arbitrators perceive factual situations and ultimately Influence the direction of the award.

One may surmise from the increased specialization and the different
combinations of age and experience naturally occurring in the profession that the ages
of arbitrators as a group may be bimodal as found by Herrick (1982). This appears to
be a consequence not only of the natural maturation process, but also of the reluctance
of employers and unions to select younger, less experienced arbitrators. Although
Zirkel (1983) finds this trend changing, older and younger arbitrators will continue to

have vastly different practical experiences.

26

Another Inference that may be drawn is that, with the dramatic changes in the
educational system and in society as a whole, older and younger arbitrators have been
educated and socialized differently and may thus have different perceptions. Hence,
older and younger arbitrators in the I980s have less in common in the form of shared
educational and practical experiences and are less likely to conceptualize in a similar
manner. The dichotomy between age groups may be tempered by the fact that most
arbitrators are educated in the two most heavily industrialized and unionized sections
of the country. Arbitrators trained and practicing in the East and Midwest are more
likely to have a more common educational background than their colleagues in other
areas of the US. This could easily lead to the supposition that the education and
experiences received by arbitrators in different regions of the country result in different
perceptions and philosophies that are based on regional biases.

In general it appears that over the years the parties consciously or
unconsciously have been imposing a specific set of qualifications on entering arbitrators
such that over half of the current arbitrators have legal training. It may be that, as
suggested by King (1971b), the parties wish to ensure that any chosen arbitrator has
sufficient legal training to understand the increasing legal complexities of the labor
relations field. For example, any attorney should have at least a fundamental
comprehension of contract, labor, and EEO law. Parties involved in such disputes as
sexual harassment, subcontracting, or management's rights may be less likely to accept
an arbitrator who it believes lacks competency in this area. Therefore, they may be less
likely to strike an attomey’s name from the list than a non-attomey, especially If the

advocate is an attorney (Lawson, 1981).

27

Another possibility is that, in order to generate a more “harmonious" body of
decisions, the parties feel that arbitrators with common training are more likely to render
like decisions which then should be more predictable. Attomey-arbitrators would clearly
satisfy this belief. It is plausible to surmise that arbitrators of the future will possess
more uniform backgrounds and that legal training will enhance the likelihood of
acceptance and/or success.

Given the above profile of the arbitration profession, the next step is to examine
whether prior research has discovered any relationships between these biographical

characteristics and arbitrator selection and/or behavior.

Biographical Characteristlcs and Selection

Not all researchers believe the arbitrator to be a crucial variable in predicting the
award. Petersen (1970) found the ability of union advocates to predict their arbitration
outcomes after the hearings but prior to the issuance of the awards was greater than
expected. The dominant basis for their predictions was the strength or obvious merit,
or lack thereof, of the union case. Knowledge of an arbitrator’s prior decisions on
similar issues was rated less important than the strength of established precedent in
similar cases. According to Petersen, the choice of a particular arbitrator and the
practice of assembling box scores of an arbitrator's decisions for selection purposes
or determining continued acceptability were not supported by this study.

When management and union representatives determined which arbiter attributes
were most important and compared inexperienced and experienced arbitrators on these
attributes, they considered an inexperienced arbitrator to be one lacking at least one

of these qualifications:

28

(1) forty years of age or older;

(2) at least a Master’s degree;

(3) a minimum often years of labor relations experience;

(4) four or more years of labor arbitration experience; and,

(5) at least one organizational affiliation such as AAA, FMCS, or NAA (IGng,
1971a)

Both management and union representatives believed experienced and
inexperienced arbitrators differed significantly in terms of decision-making, consistency,
and information development during the hearing. They also rated the experienced
arbitrator higher than the inexperienced arbitrator on each of these attributes. It is
easy to understand why the parties believed these three attributes to be important not
only to the outcome of the case, but also to the differentiation between the two
extremes in experience. Rendering consistent rulings and using questions to develop
the record are attributes requiring some length of service as an arbitrator to establish
a pattern of rulings or a style or preference of information gathering. Basing the
decision on the facts of the case may be indicative of arbitral experience, but training
also may play a role in the parties' perceptions of this attribute. Thus, a significant
difference existed in the attitudes of the participants toward experienced and
inexperienced arbitrators, with the difference definitely favoring experienced arbiters.
The union, however, perceived a much smaller gap between the two experience levels
than did management.

The objective and subjective considerations utilized by unions and management
selecting an arbitrator were studied in 1978 by Rezler and Petersen. The participants
agreed that, when considering an unfamiliar arbitrator, they would carefully research
his/her background and experience. The arbitrator’s experience and expertise was

their foremost consideration. The number of years serving as an arbitrator, the number

 

29
of cases handled, the number of awards published by the reporting services, and NAA

membership were cited as the minimum standards used to qualify an arbitrator as
experienced. Experience in conjunction with the issue involved were important factors
in many selection decisions. Respondents indicating a willingness to employ a less
experienced arbitrator in certain types of cases maintained that experienced arbitrators
were necessary in contract interpretation cases requiring the arbitrator to “read between
the lines.“ The majority of participants amenable to using less experienced arbitrators
would select them for uncomplicated issues where no broad principle was involved,
where the case had limited or no precedent value, or when the entire panel was
inexperienced.

Rezler and Petersen felt that, at the very least, the original profession in which
the arbitrator was trained influenced his/her skills, techniques, philosophy, and approach
to arbitration. The parties also believed the arbitrator’s professional background to be
an important criterion, although they stated that acceptability was determined more by
experience than by professional background. In general attomey- and economist-
arbitrators had equal chances of being selected by attorney representatives while non-
attorney selectors were slightly more prone to choose economist- rather than attomey-
arbitrators. The least Important criteria were the arbitrator's geographical proximity to
the dispute and me arbitrator’s fee.

The issue of selecting a female arbitrator yielded mixed responses from the
parties. Eight of the twenty-six participants stated that the sex of the arbitrator was
irrelevant. Five advocates avoided the issue by declaring they had never utilized a

female arbitrator, while seven union and management representatives objected to

30
selecting a female arbitrator on the bases of the arbitrator's sex, lack of experience, or
bias.

Lawson (1981) investigated the parties’ and the arbitrators’ perceptions of the
objective selection criteria for arbitrators considered acceptable in the private sector.
The average age of the arbitrators participating in this study was forty-eight years,
somewhat younger than expected based on prior studies. Table 2.1 represents the
arbitrators’ rankings of the ten factors they believed were most important in selection.
The users (management and union practitioners) and arbitrators agreed that name
recognition was the single most important criterion. Users Indicated they often relied
on the selection advice of trusted colleagues. From their comments users appeared
to place greater significance on securing an arbitrator they believed could render a just
award than on winning the case. A possible inference is that name recognition may
be a proxy for experience and/or professional affiliation since new arbitrators are less
likely to be widely known.

Arbitrators and users agreed that geographic location was the third most
important selection factor. Comments from the users suggested that, in a particular
selection decision, other factors may be rated of greater importance than geographic
location.

There was further consensus between the two groups that real world experience
was important but that other criteria may reduce its significance. The practitioners
believed the arbitrator must possess arbitral experience, but they attached little

importance to the arbitrator's age.

31
Table 2.1

Arbitrator Ranking 0 Ten Factors Deemed
Most Important In Arbitrator Selection

 

 

Arb'rffitor Rankng
- Name Recognition

Reputation for Integrity
Geographic Location
Real World Experience
Published Awards
Arbitrator is an Attorney
Level of Education

Size of Per Diem Fee

@0NG&#QM-‘

Professional Organizations
Sex/Ethnic Characteristics

_s
o

Source: Lawson, 1981.

The attorney-arbitrator was ranked exactly midway on the list by arbitrators and
users alike. Arbitrators expressed mild disagreement with the statement that attomey-
arbitrators had a “distinct advantage over nonattomey arbitrators“ in hearing cases.
Users, however, were strongly reluctant to strike the name of an attorney-arbitrator.
Lawson believed that users perceived attorney-arbitrators as mildly preferable over non-
attomeys and would not reject an arbitrator because he/she was an attorney.

The greatest disagreement occurred in the ranking of formal education. Users
rated it as the second most important factor, while arbitrators believed it belonged in
the bottom half of the criteria. The users did not appear to discriminate as to the
nature of the education; they desired well-qualified arbitrators, and may have seen a

high level of formal education as evidence of qualifications.

32

The number of professional organizations with which the arbitrator was
associated and the sex or ethnic characteristics of the arbitrator ranked at the bottom
of both lists in terms of their importance in selection.

Searching the data further to determine which factors may have
disproportionately influenced the results, Lawson concluded that attomey-arbitrators had
a higher regard for their attractiveness to the parties than did the rest of the arbitrator
population. The advantage, he stated, did not appear to be overwhelming even If one
assumed the modem bias held by the attomey-arbitrators was also applicable to the
attorney-user. The probable result was that practicing attorneys would demonstrate a
preference for attorney-arbitrators. Since the undifferentiated practitioner population
ranked attomey- and nonattomey-arbitrators relatively the same, this consequence
seemed likely.

A second interesting discovery was the disagreement within the arbitrator
population as to the importance of the level of formal education. This was of special
Interest because of its high ranking by users. 01 the attomey-arbltrators, 58% ranked
formal education in the top half of the scale, but only 17% of the non-attomey-
arbitrators perceived it as that Important.

Three-quarters of the female arbitrators expressed disagreement with the
statement that 'the sex of the arbitrator was rarely if ever a factor in the determination
of the parties to strike or not strike“ her name, thus supporting Rezler and Petersen’s
findings (1978). Of the male arbitrators, 40% concurred with the women’s assessment
of the situation. It appeared that the low ranking of sex and ethnic characteristics by
the undifferentiated arbitrator population occurred as a result of the small proportion of

female arbitrators (14%) In the population.

33

The relationship between biographical characteristics and caseload initially was
studied by Primeaux and Brannen (1975). They hypothesized that since the parties
were willing to incur additional delay and expense in order to retain a member of the
select group of arbitrators who handled a large proportion of the cases, the parties
must believe the benefits of presenting a case before one of these busy, experienced
arbitrators outweighed the disadvantages. The parties therefore considered experience
as equivalent to qualifications and were using subjective and objective characteristics
depicting what the arbitrator was or represented as the basis for selection.

A set of objective characteristics -— past experience, current occupation,
membership in professional associations, age, education, and past caseload -— were
chosen, and the variables affecting arbitrator selection isolated. Regression analysis
indicated the parties had a strong preference for experienced arbitrators and that
experience as an arbitrator (p < .01), arbitration as a full-time occupation (p < .05),
education (p < .10), and the number of cases published in a prior period (p < .01)
were all significantly and positively related to caseload. The lack of professional
affiliation was significant and negatively related to caseload (p < .10). The variables
explained 70% of the variation in the caseload handled during the period studied. Age
was consistently insignificant in all equations tested.

While the preceding best explained the reasons for arbitrator selection, Primeaux
and Brannen looked further into the relationships between the variables in the analysis.
They discovered that statistically significant differences existed in the demands for
arbitrators with different types of experience. After arbitrator experience, the next most

important type of experience was experience as an attorney (p < .01 ), followed by

34
experience in industry or government (p < .01), and finally by experience in education
(p < .01).

In testing differences in occupations, they found no statistically significant
difference between attorneys and full-time arbitrators. Attorneys appeared to fare better
in the selection process than did educators, who were significantly different from
professional arbitrators at the .10 level.

Professional affiliation was relatively unimportant except for those arbitrators with
no ties to any professional association. Non-affiliated arbitrators were adversely affected
(p < .10) and retained less frequently than arbitrators listed on AAA or FMCS panels.

Briggs and Anderson (1980) utilized arbitrators' responses to background
variables as indicators of the acceptability measure caseload. The dependent variable,
caseload, was defined as the number of cases heard by the arbitrator within the twelve
months preceding the survey. Regression analysis revealed the overall relationship
between the background characteristics and caseload was weak. Of the background
characteristics shown in Table 2.2, stability of residence (p < .10) was positively related
to caseload at a significant level while years of college (p < .05) and the Ph.D. degree
(p < .05) were negatively related at a significant level. These findings may be
interpreted as an indication that arbitrators with more years of college and who would
tend to be the Ph.D. arbitrators either were offered fewer cases and were less
acceptable or could accept fewer cases because of the requirements associated with
most Ph.D. professionals, i.e., teaching or school limitations on outside activities.

Although formal education did not appear to be a significant factor in caseload,

the completion of a formal arbitrator development program (p < .05) was a positive and

35

significant variable. Arbitrators completing such a program tended to hear more cases
during the preceding twelve months than did those receiving no such training.

Being listed with private and public sector designating agencies (both p < .01)
or in agreements as a permanent umpire (p < .01) and memberships in professional
organizations (p < .01) were very strongly and positively related to caseload. Overall,
the number of contracts in which the participant was listed as the permanent umpire
was the sole highly significant variable In the regression analysis.

Briggs and Anderson suggested that young arbitrators may improve their
selection possibilities by being listed with private and public sector designating
agencies, attaining an advanced degree prior to attempting to arbitrate and compete
with other arbitrators, and submitting their awards for publication as often as the parties

grant their permission.

Summa_ry of Biographical Characteristics and Selection
When rating the importance of the biographical characteristics, practitioners and

arbitrators consistently considered experience to be an Important criterion. It was
variously defined as years as an arbitrator, labor relations or real world experience,
caseload, and published awards. Education was found to be important in selection,
but management and union representatives placed a much higher value on it than did
arbitrators. Age and gender were reported as important factors in one study and
unimportant In another, although an arbitrator's gender seemed to be an issue in both
of these studies. In two studies professional affiliation was thought to be an important
factor, while in a third study, it was one of the least important criteria. Geograph-

ical proximity was ranked very highly in one study and discounted in another. Finally,

36
Table 2.2

Zero-Order Correlations’ And Regression Coefficients'
Directions For Selected Arbitrator
Characteristics With Caseload

 

 

 

 

W m—
Age + -
Sex - -
Years of College + - **
Law Degree + +
Ph.D. + - **
Stability of Residence + + *
Completion of Seminars + -
Completion Formal Program + + **
Apprenticeship + +
Years Since First Case + -
Years Since Second Case + -
Sector of First Case - -
MW Experience + +
Labor Experience + -
Government Experience + 4-
Administrative Agency Experience + -
Educational Experience + -
Arbitration Experience (Advocate) + 4-
Listed with Private Sector
Agencies (Number) + + ***
Listed with Public Sector
Agencies (Number) + + ***
Listed in Agreements as
Permanent Umpire + + ***
Memberships in Professional
Organizations + + ***
* p < .10
** p < .05
1'“ p < .01

Source: Briggs and Anderson, 1980.

37

occupation never played more than a minor role In any of these studies. Clearly, the
parties neither wholly agreed on the definitions nor on the proper weighting of these
biographical characteristics.

The two studies examining biographical characteristics and caseload did not
brighten the picture appreciably. Experience as an arbitrator, attorney, educator, or in
the real world plus the occupation of full-time arbitrator were two crucial factors In being
selected in one study but not in the other. Education, in the form of years of college
and the Ph.D. degree, was negatively associated in one study and positively associated
in the other. In both studies lack of professional affiliation was indicative of lower
caseloads, while in only one study was stability of residence related to higher
caseloads. Age and gender were not significantly related to caseload. Thus, the two
different approaches of scrutinizing how biographical information are used in selection

yielded contradictory and, confusing results.

Biographical Characteristics and Arbitrator Behavior

Fleming (1965) conducted two experiments examining experience and decision-
making. In the first study third-year law students were provided transcripts, exhibits,
and briefs of cases from Fleming’s personal files and then were asked to write the
decisions. The issues involved discipline, discharge, simple contract interpretation,
and a combination of contract interpretation and bargaining history.

In the disciplinary cases, four of the five opinions submitted agreed with
Fleming’s actual decisions of whether or not the discipline should be upheld or
reversed. Eleven of the eighteen awards concurred with Fleming's decisions concerning

revoking or modifying the discharge penalties. Twelve of the thirteen contract

38

interpretation opinions were consistent with Fleming’s interpretations. The most difficult
case, involving contract interpretation and bargaining history, was decided by two
students, neither of whom agreed with Fleming.

Fleming concluded that, in uncomplicated contract interpretation cases requiring
no subtle labor relations considerations, inexperienced and experienced law-trained
decision-makers were likely reach the same conclusions. In discipline and discharge
cases, the abundance of texts and published cases provided sufficient guidance for
decisionomakers to discern the “general rule.“ The problem, Fleming noted, was that
such cases often involved credibility issues which the students may have been able to
resolve had they the opportunity to view the witnesses.

In the second experiment Fleming tried to determine to what extent experienced
NAA arbitrators (two attorneys, three economists) and experienced employer and union
attorneys would be able to predict the outcome of an arbitration case. He was also
interested in whether there was a difference between the decisions of attorney- versus
economist-arbitrators. The case selected involved a very complicated contract
interpretation question (scheduling versus layoff), plus a potential legal issue.

The five management attorneys believed the case would ultimately go to
arbitration and that the outcome was doubtful. Only two of these attorneys thought the
employer would win the case. The remaining three thought the union would prevail,
but only two agreed on a remedy. All five felt the outcome could differ from arbitrator
to arbitrator, but they did not necessarily attribute this to the educational background
of the arbitrator. Instead, they stated that other factors, such as experience, could also
Influence the arbitrator’s decision. They acknowledged that if the arbitrator was

inexperienced, then educational or professional training might play a greater role.

 

39

The two participating labor lawyers believed the union position was stronger
and would be upheld in arbitration. One of them did not think the arbitrator’s training
as an economist or attorney would make any difference in the outcome as long as the
arbitrator followed the dictates of the law with regard to bargaining. Since the second
lawyer felt the case hinged on a legal question requiring knowledge of contract law, an
attomey-arbitrator was preferred. Both labor lawyers agreed on the basic remedy.

Five of the seven labor and management attorneys believed the union would
prevail; the five arbitrators, however, were greatly divided over the outcome of the case.
One attomey- and one economist-arbitrator declared the union would win the case.
According to one attomey- and two economist-arbitrators, the employer would win the
case. None of the arbitrators believed a layoff had occurred, and only one of them
thought the layoff issue to be serious.

Fleming concluded that, had the labor and management attorneys known the
arbitrators' identities, their predictions might have been different. Management’s rights
was a question over which arbitrators had decidedly different views, and the presence
of the possibility of bad faith made predictability more tenuous. Predictability and the
individual arbitrator's viewpoint might be related, however, and Fleming surmised, If
they were, then labor and management could study the views of the experienced
arbitrators in order to make an educated guess as to a particular arbitrator’s potential
award.

Westerkamp and Miller (1971) also used management and labor advocates to
determine if the parties could differentiate between the awards of experienced (more
than eighty cases heard during career) and inexperienced (no cases heard) arbitrators.

In this study two experienced and two inexperienced arbitrators wrote abbreviated -

4O

opinions and awards after viewing a training film depicting a mock arbitration case.
Management and union labor attorneys viewed the film and attempted to determine
which decisions were written by the experienced versus the inexperienced arbitrators.
A five-step scale from 0 to 8 was utilized, with 0 representing an inexperienced arbitrator
(Arbitrators W and X) and 8 being an experienced arbitrator (Arbitrators Y and Z).

The results indicated that neither management nor union attorneys could differ-
entiate between the two levels of experience based on the award. The scores ranged
from an average low of 2.6 for Arbitrator Y to an average high of 5.6 for Arbitrator 2.
With the exception of Arbitrator Z's 5.6 rating, the average rating for each arbitrator
clustered around 4.0, indicating that the attorneys could not differentiate between the
experienced and inexperienced arbitrators. The combined average ratings of the
experienced and the inexperienced arbitrators was 4.1, further emphasizing the inability
of the attorneys to differentiate the two extremes of experience. The experience level
of Arbitrator 2 was properly estimated 60% of the time, but no other arbitrator’s
experience level was predicted correctly more than twice. Further, the inexperienced
arbitrators actually had a narrower rating range than the experienced arbitrators (3.8
to 4.4 versus 2.6 to 5.6 respectively). Arbitrator Y, designated as experienced, received
the lowest average rating of the four arbitrators, while Arbitrator 2, also experienced,
had the highest average rating. Thus, experience may be a strong factor in the
parties' opinions with respect to arbitrator acceptability, but in this study it appeared to
have little effect on the actual award or the parties’ ability to predict the award based
on the arbitrator’s experience.

Bankston (1977) was interested in whether any value differences could be

attributed to differing educational backgrounds in the relatively small cadre of arbitrators

 

41

who, at that time, rendered the majority of the arbitration decisions. He hypothesized
that attomey-arbitrators and economist-arbitrators had different attitudes about specific
cognitive objects.

A profile of the participants showed that over half of the arbitrators had law
degrees, 34% were classified as economists, and 12.5% were listed as other. An
arbitrator with a law degree was designated an attomey-arbitrator, while a holder of a
degree In labor relations, economics, or business was classified as an economist-
arbitrator. Persons having degrees other than those listed above were deemed other-
arbitrators.

It was found that economist- and attorney-arbitrators differed significantly on
four concepts: economic efficiency, union penetration of managerial decision-making,
the use of compulsory arbitration in the private sector, and the existence of right-to-work
laws. In each instance the economist-arbitrator tended to adopt a position farther
toward one extreme or the other than did the attomey- or other-arbitrator. Right-to—
work laws ranked as the lowest significant concept while economic efficiency was the
concept given the most credence. ln descending order after economic efficiency came
union penetration and compulsory arbitration.

The next step taken by Bankston was to isolate the concepts that were
significantly different for the attomey- and economist-arbitrators. A significant difference
occurred between the two groups for the concepts of right-to-work laws (p < .05),
compulsory arbitration (p < .01), and union penetration (p < .01). The results indicated
that economist-arbitrators held a conclusively more negative attitude toward right-to-
work laws than did attomey-arbitrators who saw it as a slightly negative or sometimes

neutral concept. The greatest separation in viewpoints concerned compulsory

42
arbitration in the private sector. Attomey-arbitrators were generally supportive of the
concept (rating it as fair, modestly valuable, and important), while economist-arbitrators
were distinctly opposed to it. Their positions were reversed for union penetration of
managerial decision-making with attorney-arbitrators expressing more negative
viewpoints. Attomey-arbitrators perceived this concept as rather neutral to negative, but
economist-arbitrators evaluated it as neutral to positive.

Bankston concluded that each arbitrator’s personal values and attitudes differed
and reflected his/her educational background. Consequently, an arbitrator’s perspective
of various concepts was affected, and the parties should consider educational
background in selecting an arbitrator for a particular issue.

Doeringer (1977) noted that Bankston's study population consisted of the most
experienced, active arbitrators who tended to be older, were “further removed from the
prejudicial effects of education,“ and shared common arbitral experiences (p. 187). The
concepts found to be significant represented several of the most controversial and
divisive issues and probably had been discussed by the arbitrators. The possibility thus
existed that the differences were understated. Doeringer, however, believed it more
likely that the data overstated the differences in the attitudes of the two groups since
arbitrators try to minimize the degree to which their personal views intrude into their
decisions. Hence, educational background would not be as significant a factor in how
arbitrators view different issues.

In a study by Nelson and Curry (1981), arbitrators submitted background data
on their age, education, occupation, and experience as an arbitrator. The arbitrators

also reviewed an edited transcript of a discharge case and were asked to render their

43
judgments. The discharge penalty was sustained by 55.4% of the arbitrators, while

44.6% revoked or modified the penalty.

Arbitrators were classified according to Bankston's nomenclature on education:
all arbitrators with law degrees were designated attorney-arbitrators; economist-
arbltrators held business, economics, or labor relations degrees; and those individuals
with degrees in other fields were categorized as other-arbitrators. Approximately 45%
of the economist- and attomey-arbitrators modified or revoked the discharge penalty,
while 33% of the other-arbitrators and arbitrators without advanced degrees did so.
For the education categories together and for each one separately, Chi-square statistics
were not significant.

The possible selections for the arbitrator’s primary occupation were full-time
arbitrator, non-labor attorney, labor advocate or attorney, management advocate or
attorney, or other. Advocates were the group most likely to revoke or modify the
penalty. Interestingly, management advocates (66.7%) were more prone to overturn the
discharge penalty than were labor advocates (60%). Among the full-time arbitrators,
professors, and non-labor practicing attorneys, 40% modified or revoked the discharge
penalty. Other-arbitrators were least likely to overturn the discharge (27.3%).
Nevertheless, while it appeared that advocates were more ”liberal“ in their interpretation,
a Chi-square statistic computed for all the occupations was not significant.

The most significant factors in the arbitrators’ decisions were age and
experience. The arbitrators were divided into thirds with respect to experience.
Arbitrators who had heard at least 200 cases in their careers were classified as highly
experienced arbitrators and constituted 33.8% of the respondents. Slightly over 10%

of the arbitrators had never heard a case. These arbitrators and arbitrators who had

44
heard fewer than twenty cases were categorized as the least experienced arbitrators
(33.8%). The arbitrators with modest experience, 20 - 199 cases, comprised 32.4% of
the sample.

The least experienced arbitrators tended to reinstate more often than the
modestly to highly experienced arbitrators. The discharge penalty was modified or
revoked by 87.5% of the arbitrators who had heard no cases and by 80.0% of the
arbitrators who had heard one to nine cases. Thus, arbitrators with very little
experience had a large impact. The Chi-square statistic supported the statement that
the decision to modify or revoke the penalty was related to experience (p = .02).

Age ranged from thirty-one to eighty years, with a mean age of 55.9 years. Of
those upholding the discharge penalty, the mean age was 58.5 years; of the arbitrators
modifying or revoking the penalty, 52.6 years was the mean age. This difference was
statistically significant at the .03 level.

Nelson and Curry investigated the impact of age further, dividing the
respondents into thirds with respect to age. Of the oldest third, the 62 - 80 age group,
20% modified or revoked the penalty, while among the arbitrators 31 - 50 and 51 - 61
years old, the penalty was modified or revoked by 58.3% and 56.0% of the arbitrators
respectively. Hence, the 62 - 80 age group appeared to have a significant impact on
the decision to modify or revoke the penalty, and the Chi-square statistic supported the
relationship between age and penalty modification or revocation (p = .01).

Age and experience were discovered to be related. Few arbitrators in the most
experienced third were less than sixty-two years old, and few arbitrators in the least
experiean third were at least sixty-two years old. The Chi-square statistic indicated

that experience and age were not independent (p = .00). Table 2.3 shows the impact

45 .
of experience controlling for age. Arbitrators in the 31 - 50 and 51 — 61 age groups and
with fewer than twenty cases modified and revoked the discharge penalty more
frequently than did the more experienced arbiters. The Chi-square statistic was not
statistically significant for these two age groups, but the impact of experience was
consistent with their earlier findings on experience. Only two arbitrators in the 62 - 80
age group had heard fewer than twenty cases, and the results for that age group were

not conclusive.

Table 2.3

Combined Effects Of Arbitration Experience And
Age On The Modification And Revocation
Of The Discharge Penalty

 

 

 

 

 

31 3507886 51 - WWW
Number of Casi Numbg (96) Number (96) Number (96)
0 - 19 13 (69.2) 10 (80.0) 2 ( 0.0)
20 - 199 9 (44.4) 9 (44.4) 6 ( 0.0)
200 or more 2 (50.0) 6 (33.3) 17 (29.0)

 

Source: Nelson and Curry, 1981.

Nelson and Curry's research supported Fleming’s assertion (1965) that no
difference existed between the awards of economist- and attomey-arbitrators. It did not
support Bankston's theory (1977) that an arbitrator’s educational background influenced
not only that individuals values and attitudes, but also his/her arbitral decision-making.
More likely, they argued, these results gave credence to Doeringer's assertion that
arbitrators minimize the effect of values and attitudes in their decisions.

Contrary to the conclusions of Fleming (1965) and Westerkamp and Miller

(1971), Nelson and Curry believed the fact that the oldest and youngest age groups

46

differed so greatly indicated that the members of the oldest age group had shared
certain experiences over the years which influenced their decision-making.

If winning was the parties' sole concern, Nelson and Curry did not think that
consideration of the arbitrator’s occupation and education was necessary. Concerning
the parties' preference for highly experienced arbitrators, the data showed that
arbitrators with modest experience rendered decisions no different than those of their
more experienced colleagues. Furthermore, the results suggested the union should
prefer arbitrators with very little experience for certain types of cases. Finally, as
' opposed to previous beliefs, the arbitrator's age should be a consideration.

Nelson (1986) built upon the above study and analyzed how management and
union advocates would have used age, education, experience, and occupation to select
the arbitrator to hear this discharge case. An analysis of the parties’ perceptions of
these four criteria yielded two major points. First, both parties ranked the criteria the
same in terms of importance - experience, occupation, education, and age. Second,
although they ranked the criteria similarly, the parties weighted the factors differently.
Unions viewed experience as a key criterion and occupation, education, and experience
respectively also were seen as significant factors. Although considering experience to
be the most important criterion, management valued it less did the union. Management
believed occupation was only slightly less important than experience while education
and age were of much lesser importance.

The next step was to determine which mix of these criteria the parties preferred
for the discharge case. Both sides desired an arbitrator from the two younger groups
(i.e., less than sixty-two years old), unions indicating that they strongly (69.296) wanted

an arbitrator from the middle age category (fifty-one to sixty-one) and did not want an

47
arbitrator from the oldest group (096). Management also favored the middle group
(47.696) and, although they would accept an arbitrator from the oldest group (1996), it
was their third choice.

In terms of education 41.296 of the representatives wanted an attomey-arbitrator
and the remainder desired an arbitrator with either an economics or advanced degree.
Two-thirds of the management representatives liked arbitrators with economics degrees,
and over half of the union representatives wanted arbitrators with a law background.
Neither side wanted an arbitrator who lacked either a law or economics degree or an
advanced degree.

Arbitrators with a minimum of twenty decisions were the ovenivhelming choice
of the parties. Management exhibited a strong preference (71.496) for the modestly
experienced group; unions favored the highly experienced over me modestly
experienced group by a slight margin (53.896 to 46.296 respectively).

Full-time arbitrators were the first choice of both management (47.696) and union
(61.596), although management was equally likely to select an attomey-arbitrator.
Unions also favored attomey-arbitrators (23.196) but at a much lower rate than
management. Both sides agreed that arbitrators who were not either full-time or
attomey-arbitrators or college professors were not to be selected.

From the above it was clear that the parties considered background factors as
important to the selection of the arbitrator, but it was equally obvious that neither side
chose the mix of biographical characteristics which would have maximized the chance
of winning. Management preferred arbitrators younger than sixty-two years old, but It

was this oldest group that was least likely to reinstate the grievant. The union correctly

48
wanted to avoid this oldest group, but only one-third of the union advocates preferred
to use the age group most likely to reinstate the grievant, the youngest arbitrators.

With respect to experience, no union representative selected an arbitrator from
the group most likely to reinstate the grievant, the arbitrators with fewer than twenty
decisions. Instead, they preferred the highly experienced group and the one least likely
to reinstate. Management did better in this area by strongly favoring the modestly
experienced group which was only slightly more likely than the highly experienced
group to reinstate the grievant.

Occupation and education played a greater role in selection decisions than in
arbitrators’ decisions. Occupation was ranked the second most important factor by
both groups, and management viewed it as only slightly less important than experience.
Occupational differences, however, were not statistically significant. Management was
equally likely to pick a full-time arbitrator or an attorney, but attorneys were the most
likely occupations to order reinstatement (52.996). Less than one-fourth of the union
representatives selected the attomey-arbitrator, choosing instead the full-time arbitrator
who was less likely to order reinstatement (42.996). Education was ranked as the third
most important selection factor. It was not deemed a key factor by management and
was only slightly more important to unions. Indeed, the lack of a significant relationship
between education and awards supported the parties’ lack of a clear preference in
this regard.

Nelson concluded that age and experience were related to arbitral decisions, but
education and occupation were independent of awards. The parties ranked the criteria

similarly, but did not utilize them appropriately to maximize the likelihood of winning.

49
They did not properly gauge the importance of the age and experience categories, and
they both weighted occupation too heavily and age too lightly.

Heneman and Sandver (1983) attempted one of the more sophisticated studies
of the relationship of biographical characteristics and arbitrator behavior. Each arbitrator
included in the sample had a minimum of four published cases. In addition to the
cases and biographical sketches gathered, performance rating data on the arbitrators
were collected from a private arbitration reporting service.

With 144 independent variables that could enter four regression models, the
independent variables were grouped according to the arbitrator’s personal
characteristics: education, current occupation, past occupation, registration with
arbitration services, and professional activities. A profile of the arbitrators indicated that
the average age was sixty years, women were underrepresented at only 296 of the
sample, and almost threefourths of the arbitrators lived outside the South. The
arbitrators were a highly experienced group with an average professional career
spanning thirty years. They gained labor relations experience through the customary
prior occupations: (1) government employee (Federal (30.8%), State (14.0%)), (2)
attorney (34%), (3) non-attomey professor (23.6%), (4) management employee (19.2%),
and (5) law professor (17.6%). Rarely had an arbitrator also worked in the labor
movement (3.6%).

As expected, the group was also highly educated. Over 96% had Bachelor's
degrees; 37.6% had Master's degrees while 18.4% had obtained their Ph.D. degrees.
Law degrees were held by 72.4% of the sample, indicating that cross-training with law
continued to be a popular entry portal into the profession. This was further supported

by the large group of law professors (12%) and full-time attorneys (38.4%). Non-

50
attorney professors (19.6%) and full-time arbitrators (25.2%) completed the greater
proportion of current occupations in the sample.

Professional affiliations with AAA (77.6%) and FMCS (65.6%) were the principal
listings of the group, although 46.8% of the arbitrators belonged to the NAA. This high
percentage of NAA arbitrators indicated they were very experienced arbiters and had
rendered a large number of decisions. Affiliation with these three organizations also
insured that name recognition was high and selection opportunities increased.

Only ten of the independent variables were statistically significant, and none of
the variables appeared in each equation. Very little of the overall variance was
explained in any of the models. In the PERCENTAGE OF CASES DECIDED FOR THE
UNION regression model, residence (non-South, positive), Bachelor’s degree (negative),
and highest degree from a private school (negative) were statistically significant. Only
the consultant variable (present occupation) was statistically significant in the equation
examining the PERCENTAGE OF DECISIONS MODIFIED. From the PERCENTAGE OF
DECISIONS APPROVED (by the clients of the reporting service) equation, three variables
- no degree, Economics professor (current occupation), and consultant (past
occupation) - were statistically significant. Age and arbitrator (current occupation) were
the only statistically significant variables in the final model, the CONSENSUS equation,
which was an overall rating of the arbitrator made by the reporting service.

Heneman and Sandver concluded there was little support for the relationship
between biographical characteristics and arbitrator behavior. They believed that, based
on the results, the parties should not rely solely on consultation and arbitrator
biographical data. Clearly, these results challenged prior findings that age and

experience should be considered in arbitrator selection.

51
Summgy of Biggrgghical Characteristics grid Arbitrator Behavior

Early studies of arbitrator behavior indicated that decision-makers involved in
relatively simple issues reached the same conclusions regardless of their levels of
experience. Management representatives believed education or training could affect the
decisions of inexperienced arbitrators; the level of experience, they stated, may result
in awards varying from arbitrator to arbitrator. Educational background was thought to
be important but later studies failed to confirm this finding.

Recent research has not clarified the relationship between biographical
characteristics and decisions. Age, education, experience, residence, occupation, and
professional affiliation all yielded significant and contradictory results. According to
two studies, older arbitrators (62 - 80) were more likely to sustain discharges than were
younger arbitrators. The least likely age group to sustain the discharge was the
youngest one (31 - 50). The same relationship existed for experience - the least
experienced arbitrator (fewer than twenty decisions) was less likely sustain the
discharge than modestly or highly experienced arbitrators. Age and experience were
not independent, and the great disparity between the oldest and youngest arbitrators
was believed to indicate differences in shared experiences. Neither education nor
occupation were found to be influential. These conclusions were not supported by
the third study which determined that biographical characteristics did not consistently
appear in the award-related equations. Instead, the finding was that little justification
existed for weighting biographical characteristics heavily in arbitrator selection.

The prior section concerning the difficulties encountered in defining the
importance and usage of biographical characteristics was confirmed. It was very clear

that either each party was not properly utilizing characteristics to maximize its chance

52

of winning or other factors were entering into the selection decision Miich reduced the
importance placed on the arbitrator's personal characteristics. For example, although
the least experienced arbitrator was more likely to revoke or modify the discharge
penalty, unions were more likely to desire the least likely group to order reinstatement,
that is, the highly experienced arbitrator. While management strongly wanted the
modestly experienced arbitrator, the first choice should have been the highly
experienced arbitrator. In terms of the age consideration, similar results occurred.
Management did not prefer to use arbitrators in the oldest group, yet they were the
most likely ones to sustain the discharge. Only one—third of the union advocates
correctly wanted to use the youngest arbitrators who were the most likely group to
revoke or modify the penalty.

From the above, it appears there is no consensus on the importance of
biographical characteristics, their usage, and their relationship to awards. In the next
chapter the ways in which this study differ from previous research will be addressed In

addition to a discussion of the theoretical expectations and the methodology employed.

CHAPTER III

METHODOLOGY

In this chapter the data, theoretical expectations, and analysis technique used

in this research are discussed. The first section is devoted to a discussion of the data,
including its advantages and limitations. The second section outlines the expected

1 relationship between each of the biographical attributes and the discharge decisions.
Specifically, the anticipated roles of age, education, experience, occupation, residence
location, professional affiliation, and gender are scrutinized in terms of tendencies in
discharge awards to (1) sustain, (2) modify, or (3) revoke the penalty. In the third
section two different approaches to analyzing the data in terms of the acceptable

significance level are considered.

DATA
The data were provided by the LRP Publications (LRPP), an independent private
reporting service for union and management clients. LRPP receives published awards
from the Bureau of National Affairs (BNA), Commerce Clearing House (CCH), and other
senrices and agencies. It also contacts union and management representatives and
arbitrators throughout the country seeking submission of arbitration decisions. Awards

encompass both the public and private sector and a broad range of industries,

54
occupations, issues, and unions. It thus provides a good, nationwide cross-section of
discharge cases.

The cases selected for analysis were discharge cases with award dates between
January 1, 1980, and September 30, 1984. From a research standpoint, the use of
LRPP data from this time frame provides a source from which others can replicate the
research reported here. It can also be used as a basis to study post-1984 trends or
changes which may have occurred. Discharge cases were chosen because they afford
the opportunity to study a relatively homogeneous population of cases and provide a
control over factors which, in other contract interpretation issues, may cloud the
delineation of the outcome. That is, discharge cases require value judgments since
collective bargaining agreements and arbitrators' opinions almost uniformly discuss
discharge in terms of “just cause.“ Just cause cases are predominantly concerned with
performance or behavioral issues which are broadly similar. The awards are clear-cut,
definitive, and easily operationalized, i.e., penalty-denied, penalty-revoked, etc.’ A
second reason for using discharge cases is that it is the issue most frequently
arbitrated and thus one of great concern for the parties.“ The presence of both
published and unpublished cases within the LRPP data base reduces the problems of
representativeness and bias, and the scope of the data is national in nature. Finally,
unlike most studies which generally use simple, uncomplicated issues or are designed

to lead the decision-maker to a specific conclusion, the LRPP cases are not mock

 

5 For a discussion of the advantages and disadvantages of using discharge
awards, see Block and Stieber (1987).

6 In 1972 discharge and discipline accounted for 29.7% of the issues arbitrated
under the FMCS auspices; this figure had risen to 39.9% in 1981 (FMCS, 1982). For
AAA-administered cases, discipline and discharge represented between 29.7% - 34.0%
of the issues arbitrated from September 1981 to October 1982 (American Arbitration
Association, 1983).

55

cases; they represent real-life issues which, with all their simplicities and complexities,
require arbitrators to make easy and difficult value decisions. Hence, the relationship
between arbitrator characteristics and awards should become more evident, if indeed
such a relationship exists.

The limitations of this data set are several. Arbitrators who, for whatever reason,
elected not to submit any or all of their decisions are underrepresented. By definition,
all arbitrators who did not render a discharge award during this time frame are omitted,
thereby limiting the ability to define experience in terms of total caseload. Utilizing only
discharge awards restricts the ability to generalize the results beyond discharge
arbitration because arbitrators normally have greater latitude in discharge than in other
interpretation issues. Moreover, discharge cases represent only one segment of an
arbitrator's total awards. To the extent that the importance of biographical
characteristics in discharge cases do not truly represent the importance of the
arbitrator’s characteristics for all his/her decisions, then they distort the overall

importance of the arbitrator’s characteristics.

The Sample

Arbitrators included in the sample must meet the following criteria: (1) The
arbitrator was alive during the entire time frame; (2) The biographical information was
readily available for that arbitrator; and, (3) The arbitrator decided a minimum of twenty—
six cases. The third criterion was implemented because the study could not examine
disparities between arbitrators with the least and greatest experience levels. Therefore,
the decision was made to concentrate on the arbitrators with the greatest numbers of

cases in order to determine whether biographical factors are predictive of their

56
decisions. These arbitrators are clearly acceptable to the parties; it may actually
develop that in terms of years as an arbitrator and caseload, the parties are using less

experienced arbitrators in discharge cases.

THEOREITCAL EXPECTATTONS
From the literature it is apparent that employer and union representatives believe
arbitrator characterisfics examined prior to selection provide useful insights into the
arbitrator’s thinking process. Alternatively, researchers trying to duplicate this process
have had mixed success in determining the significance of the various characteristics
and relating them to awards. In this section, based upon the literature review and
following a brief description of the dependent and independent variables, the specific

hypotheses to be tested are presented.

Dependant Variable
The dependent variable used in this research study is the award. This is

arguably the mom important variable in the arbitration case and one of the most
scrutinized by the parties in their research. In this study it is a categorical variable
operationalized in two different ways. The first way is based on the prior empirical
studies which have used the two-categorical approach: (1) Penalty-sustained or (2)
Penalty-revoked. Penalty-sustained means the grievance is denied and the discharge
upheld. This is generally interpreted as an employer victory. Penalty-revoked, on the
other hand, has the opposite meaning. The union is the victor and the grievant is
reinstated with full, partial, or no backpay.

57

More recent researchers, however, have further compartmentalized the Penalty-
revoked classification. Stieber, Block, and Corbitt (1985) and Block and Stieber (1987)
used a four-category approach which broke Penalty-revoked into Penalty-revoked,
Penalty-modified-no backpay, and Penalty-modified-partial backpay. Following their
lead, this study uses a three-categorical approach. Under the previous Penalty-revoked
category, Penalty-revoked and Penalty-modified categories are now possible. Penalty-
revoked is now perceived as equivalent to the full backpay award of the union win in
the two-categorical model. Penalty-modified represents a 'split“ decision in which the
grievant is reinstated with either no or partial backpay. A graphical representation of
the two approaches appears below:

Penalty-

Two-category Sustained Revoked

Three-category Sustained Revoked Modified

These new delineations allow the effect of value judgments to come through more
clearly since it can be argued that the compromise category of Penalty-modified is a
reflection of the difficulty encountered by the arbitrator in reaching a clear-cut won or

lost decision.

Independent Variables
Agg

Most of the prior research uses arbitrarily defined decade intervals to examine
ago. Since past studies have not agreed on common breakpoints for the intervals, the

current study also will arbitrarily designate the intervals. Based upon the arbitrator's

58
age as of December 31, 1983, AGE is broken into decade intervals: 40 AND UNDER,

41 - 50, 51 - 60, 61 - 70, and OVER 70 years.

E_xgrience

Two measures of experience are used in this study. In many prior studies
CASELOAD was defined as total cases in a preceding time period or during the
arbitrator’s career. Neither approach is appropriate based on the sample drawn for this
study. Therefore, as has been done in other past research, caseload ls broken into
thirds based on the distribution of discharge cases heard by the arbitrators in the
sample.

Years of EXPERIENCE as a full- or part-time arbitrator is broken into intervals -
FEWER THAN 10, 10 - 15, and OVER 15 years. This is based on the premise that if,
as was indicated in the previous chapter, the older arbitrators (World War II and Korea)
are being replaced by younger arbitrators, the parties are more likely to test new
arbitrators and develop an arbitrator pool using discipline and discharge cases.
Consequently, arbitrators with limited arbitral experience may have higher than expected

discharge caseloads.

Education

For the purposes of this study, arbitrators who are professors in business, labor
relations, or the social sciences are classified EDUCATOR-ARBITRATORS. Arbitrators
with law degrees are considered ATTORNEY-ARBTI‘RATORS regardless of whether they
also are educators. IJR-ARBTTRATORS are those arbitrators who are not educators but

possess advanced degrees in business, labor relations, 'or the social sciences.

59

Arbitrators who fall outside these boundaries, that is, have degrees in other areas or

lack an advanced degree are termed OTHER-ARBITRATORS.

Residence Location

For the present investigation, an arbitrator’s residence location arbitrarily is
broken into four major geographic areas. The Southeast (RESSE) contains Alabama,
Arkansas, Florida, Georgia, Kentucky, Louisiana, Missouri, Mississippi, North Carolina,
Tennessee, South Carolina, Virginia, and West Virginia. Arizona, California, Colorado,
I Kansas, New Mexico, Nevada, Oklahoma, Texas, and Utah represent the Southwest
(RES-SW). In the Northwest (RES-NW) are Idaho, Montana, North Dakota, Nebraska,
Oregon, South Dakota, Washington, and Wyoming. Connecticut, Delaware, Iowa,
Illinois, Indiana, Massachusetts, Maryland, Maine, Michigan, Minnesota, New Hampshire,
New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont, and Wisconsin

make up the Northeast (RES-NE).

Professional Affiliation

Two professional affiliation measures, both binary variables, are used. The first
one denotes association with AAA, FMCS, or NAA (known as PA-Y), while lack of
affiliation with at least one of these organizations is designated PA-N. The second

looks at NAA membership (PA-NAA) and non-NAA membership (PA-NN).

Occuwon
An individual who arbitrates full-time is deemed OCC-F, while a part-time
arbitrator is known as OCC-P. OCC-P is broken into primary occupations as a teaching

or practicing attorney (OCC—ATI'Y), an educator (OCC—EDUC), or other (OCC-OTHER).

Gender

An arbitrator’s gender is a binary variable (MALE, FEMALE).

Research Hypotheses
Based on the study's objectives, seven major hypotheses are to be tested in
both two- and three-category decisions.
H (1): There is no significant relafionship between age and the discharge
decision.
H (2): There is no significant relationship between experience and the discharge
decision.
H (3): There is no significant relationship between education and the discharge
decision.
H (4): There is no significant relationship between residence location and the
discharge decision.
H (5): There is no significant relationship between professional affiliation and the
discharge decision.
H (6): There is no significant relationship between occupation and the discharge

decision.

61

H (7): There is no significant relationship between gender and the discharge

decision.

Prior research has shown that models which use union "wins' or 'split" awards
explain less than seventeen percent of the variance (Block and Stieber, 1987; Heneman
and Sandver, 1983; Stieber, Block, and Corbitt, 1985). Should the two- or three-
categorical decision models of this study explain more than twenty percent, it would
indicate that an arbitrator's biographical characteristics are of much greater importance
than previously thought and there should be further examination of biographical

characteristics and awards.

ANALYSIS

One of the objectives of this research is to investigate the topic from the
practitioner perspective. Although researchers require significance levels of .10, .05, or
.01, this is a matter of convention rather than absolute requirement (Tull and Hawkins,
1987). The parties are unlikely to be interested in such strict statistical interpretations.
Instead, they seek an opportunity to analyze biographical characteristics in such a way
as to gain any advantage, however slight. If, by evaluating the mix of biographical
characteristics, an advocate can increase his/her likelihood of either winning or insuring
a ‘fair' hearing and decision, then the advocate probably will attempt to select the
arbitrator who comes closest to meeting the criteria. The level of significance would not
need to be high for the practitioner's purposes. That is, a .50 level of significance
between the decision and the biographical characteristic would indicate the
characteristic is not strongly related to any decision classification. A significance level

of .40, .30, or .20, however, may indicate that arbitrators with those characteristics are

62

marginally, philosophically disposed toward one decision category and should be further
investigated. From the standpoint of economics, this may outweigh the higher
probability of a Type I error (Meek and Turner, 1983). Therefore, to allow for both the
practitioner and academic standards, the hypotheses will be tested at the .40, .30, .20,
.10, and .05 levels.

Because of the restrictions placed on the analysis by the use of a categorical
dependent variable, LOGTT will be used to analyze the relationship between the
independent variables and the awards? Using the shortened notation for describing

the LOGTT model, the relationship between the dependent and independent variables

is:

D = f{A,Ex,C,Ed,O,Pa,Na,Rl,G}
where

D = the decision category;

A = 896;

Ex = experience;

C = caseload;

Ed = education;

0 = occupation;

Pa = professional affiliation;

Na = NAA association;
RI = residence location; and,
G = gender (Knoke and Burke, 1980, p. 20).

This notation indicates that the letters enclosed within the brackets are hypothesized
to be related to the decision category. Further, the set of bracketed letters denotes not

only the highest order effect parameter, but also all the lower order relationships, i.e.,

 

7 For a discussion of LOGTT and log-linear models, see Aldrich and Nelson (1984),
Bish0p, Fienberg, and Holland (1975), Haberman (1978), and Knoke and Burke (1980).

63
the two—way, three-way, and so forth, interactions. Thus, this model represents a
saturated, hierarchical approach which will require the computation and fitting of all
marginal and conditional odds. The Student’s t-statistic will be used to examine the
individual coefficient estimates. The maximum likelihood estimate ratio (L2) and
Pearson's chi-square (X2) will be used to determine the goodness of fit, and a pseudo-
R2 used to measure the success in fit (the degree to which the error variance is
minimized) will be computed. The importance or significance of at least two, but not

all, coefficients will also be evaluated.”

SUMMARY

In this chapter the data, theoretical expectations, and methodology to be used
in the research study were discussed. The data section included a description of the
data set plus its advantages and limitations and the sample drawn. The second section
explained the nature of the dependent and independent variables and the hypothesized
relationships between them. In the final section the two approaches that will be taken
with respect to acceptable significance levels were discussed, and the model and the
test statistics to be used were outlined. In the next chapter the results will be reported,

and the discussion will focus on the support or lack of support for each hypothesis.

 

’3 For a discussion of the appropriate test statistics, see Aldrich and Nelson (1984).

CHAPTER N
ANALYSIS AND INTERPRETATION OF DATA
In this chapter the population and sample characteristics are briefly summarized.

The results are presented and a discussion of the support or lack of support for each
hypothesis is included.

POPULATION AND SAMPLE CHARACTERISTTCS

The data set has 8,570 discharge cases decided by 1,423 arbitrators. Forty-
six arbitrators each decided over twenty-five cases; of these, two either died before
October 1, 1984, or the biographical information was unavailable. Forty-four arbitrators
thus meet all three criteria, and the sample is composed of their 1,657 awards.

In terms of individual caseload within the population, the range is from one to
118 awards, with a mean caseload of 6.0 decisions per arbitrator. For the sample the
range is from twenty-six to 118 cases, and the average caseload is 37.66 cases per
arbitrator. The caseload categories used in the analysis are divided roughly into thirds:
sixteen arbitrators (36.4%) rendered twenty-six to thirty decisions, fourteen (31.8%)
issued thirty-one to thirty-five awards, and fourteen (31.8%) had more than thirty-five
discharge awards.

A scan of the names in the population shows that 80 (5.6%) are easily identified

as female. This figure falls more closely to Zirkel’s (1983) and Sprehe and Small's

64

65
(1984) findings than to Herrick’s (1982) percentage of 296 and Lawson’s (1981) 1496

participation rate. The sample set is extremely underrepresentative of female arbitrators
since there are no females who meet the criteria for inclusion in the sample. Therefore,
Hypothesis 7 concerning the relationship between gender and the discharge award Is
not tested.

The population and sample also can be examined in terms of the distribution of
the decisions by category and on a yearly basis. In Table 4.1 a comparison of the

award distributions indicates there are no major differences between the sample and

 

 

 

 

 

 

population.
Table 4.1
Distribution Of Awards For
Population And Sample

Fran—ally- Pen—alfy- Péi'ifilfy-

Sustained Modified Revoked Total
Population“ 4228 (49.5%) 2557 (29.9%) 1763 (20.6%) 8548
Sample” 855 (51.7 ) 512 (31.0) 286 (17.3 ) 1653
‘ Twenty-two cases are missing information.
" Four cases are missing information.

From Table 4.2 it is clear that the sample and the population deviate in their
case by year patterns. The years 1981 and 1982 are the most heavily arbitrated years
in both data sets. In the sample, however, in 1980 arbitrators surprisingly rendered the
fewest awards, even less than the 1984 nine-month total. It is unclear why these
frequently used arbitrators are not reported more often in this year. One possibility Is

that LRPP may not have been as widely known to these arbitrators or their parties in

66
that year. Alternatively, it may be that between 1980 and 1981 these arbitrators made

a conscious choice to submit more of their awards to LRPP.

Table 4.2

Distribution Of Cases By Year
For Population And Sample

 

 

1m 198$ 79131

 

Population 1630 2587 1854 1518 1003 8870
(19.0%) (30.0%) (21.6%) (17.7%) (11.7%)

Sample 238 427 389 345 258 1657
(14.4) (25.8) (23.5) (20.8) (15.6)

 

The arbitrators’ ages in the sample ranged from 36 to 75 years, with thirteen
(29.5%) under 51 years old. Of these thirteen, only two (4.5%) were no more than 40
years old. Seventeen (38.6%) were between 51 and 60 years old, while eleven (25%)
were in the 61 to 70 years old group and three (6.8%) were over 70 years old. The
mean age of the sample was 55.9 years, somewhat younger than expected.

Consistent with prior findings, law training was the most frequently cited
educational background, especially among the younger arbiters. Thirty arbitrators
(68.2%) had law degrees, followed distantly by the six educators (13.6%) with advanced
degrees in social science, business, or labor relations. Five arbitrators (11.4%) were
classified as Human Resource Management/Industrial Relations/Management arbitrators
(HRM/lR/MGT) with master’s degrees in these areas. The remaining three arbitrators
(6.8%) were labeled “Other" since they had either no degree or a bachelor’s or master's
degree in fields other than social science, business, or labor relations. Of the fourteen

arbitrators with no legal training, three were in their forties, four were in their fifties, six

67

were in their sixties, and one was over seventy. It thus appears many arbitrators
believe a law degree to be a valuable asset.

The years of experience as full- or part-time arbitrators as of January 1, 1980,
was concentrated heavily between eight and fifteen years. Consequently, the intervals
were restructured into less than ten, ten to fifteen, and greater than fifteen years'
experience. This information was unavailable for seven arbitrators. For the remaining
arbitrators, experience was distributed as follows: (1) Fourteen arbitrators (37.8%) had
fewer than ten years' experience, (2) Thirteen arbitrators (35.1%) had between ten and
fifteen years' experience, and (3) Ten arbitrators (27.0%) had more than fifteen years’
experience. Within the least experienced group, two arbitrators had a year or less of
arbitral experience, one had three years of experience, and two more had five years of
experience. The most experienced arbitrators were two individuals, each with 37 years’
experience. The average arbitrator had 13.1 years of full- or part-time arbitral
experience which is much closer to Herrick’s findings (1982) than to the results reported
by Dunsford and Murphy, et. al., (1985).

Eleven arbitrators (25.0%) practiced arbitration full-time, comparing favorably with
the findings of Brown (1976), Herrick (1982), King (1971b), and McKelvey and Rogers
(1971) but disagreeing with the results of Dunsford and Murphy, et. al., (1985) and
Petersen and Rezler (1977). As expected, of the part-time arbitrators, the legal
profession was represented by 27 attorneys (61.4%) and was the dominant alternate
profession. Only five arbitrators (11.4%) were also educators, while one (2.3%) was
classified as "Other." The concentration of part-time arbitrators with law backgrounds
supports prior research suggesting that legal training is an important avenue of entry

into the profession, although the percentage of educators is much lower than expected.

68

Arbitrators in the sample come from eighteen states. Thirteen arbitrators had
residences located in six of the states designated as the southeast: Alabama (1 ),
Arkansas, Florida, Georgia (1), Kentucky, Louisiana (2), Missouri (7), Mississippi (1),
North Carolina, Tennessee, South Carolina, Virginia, and West Virginia (1). Nine
arbitrators lived in California, and arbitrators were also located in three other states
classified as the southwest: Arizona (1), California (9), Colorado, Kansas, New Mexico,
Nevada, Oklahoma (1), Texas (1), and Utah. There were no arbitrators In the sample
from file northwest: Idaho, Montana, North Dakota, Nebraska, Oregon, South Dakota,
Washington, and Wyoming. The heaviest concentration of arbitrators understandably
came from the heavily unionized northeast: Connecticut, Delaware, Iowa (1), Illinois (2),
Indiana, Massachusetts, Maryland, Maine, Michigan (3), Minnesota (1), New Hampshire,
New Jersey (1), New York (3), Ohio (4), Pennsylvania (4), Rhode Island, Vermont, and
Wisconsin. Hence, as in prior studies, California, Michigan, Missouri, New York, Ohio,
and Pennsylvania were the most popular areas for arbitrator residences.

With regard to professional affiliation, all arbitrators in the sample were
associated with AAA and FMCS. Therefore, membership in the NAA became the
criterion. Considering the minimum requirements for inclusion In the sample, it is not
surprising that thirty-three (75%) of the arbitrators were NAA members. This is high
relative to Sprehe and Small’s (1984) results concerning NAA membership in the total
arbitrator population, but understandable in light of the status associated with NAA
membership.

Generally, the sample is not atypical of the profile of the arbitration profession
discussed in the second chapter. The major discrepancies are the total lack of

representation of female arbitrators and of arbitrators from the northwest. These

69
differences act as a further limitation of the potential generalization of the results to the

entire discharge arena.

PRELIMINARY ANALYSIS
In the two-category model awards assigned a value of “1" have sustained the
discharge. A value of '2' means the discharge was overturned and the grievant
reinstated with either no, partial, or full backpay. In the three-category model a '1' is
an award sustaining the discharge, a “2" is an award modifying the discharge penalty
to reinstatement with either no or partial backpay, and a '3' is a decision revoking the
discharge and reinstating the grievant with full backpay.
The coding of the independent variables is as follows:

AGE:
1 less than 41 years old
2 41 - 50 years old
3 51 - 60 years old
4 61 - 70 years old
5 over 70 years old

EDUCATION:
1 educator
2 attorney
3 HRM/IR/MGT
4 other

YEARS OF EXPERIENCE:
1 less than 10 years
2 10 - 15 years
3 more than 15 years

CASELOAD:
126-30cases
2 31-35cases
3 morethan35cases

70

OCCUPATION:
1 full-time arbitrator
2 part-time arbitrator, other occupation is educator
3 part-time arbitrator, other occupation is attorney
5 part—time arbitrator, other occupation is other
RESIDENCE LOCATION:
1 southeast
2 southwest
3 northeast
PROFESSIONAL AFFILIATION:
1 not a member of the NAA
2 NAA member

One widely used method of ascertaining the degree of the relationship between
the variables considered for introduction into regression equations and multivariate
analysis is through scrutiny of the Pearson's correlation matrix (Nunnally, 1978).
Therefore, the first step in this analysis is to examine the full model and determine
whether or not the number of independent variables should be reduced. To accomplish
this for the two- and three-category decision models, the results of the saturated,
hierarchical log-linear model using backward elimination were considered in conjunction
with the results of the Pearson’s correlation matrices.

This log-linear model requires the sample size to be at least five times the
number of cells within the table, dictating the collapsing of some of the categories
within the independent variables. The "less than 41" and '41 - 50" categories were
combined as were the ‘61 - 70" and “over 70' groups, and the age variable now had
three levels. By combining the 'HRM/IR/MGT‘ and “other‘ categories, the number of
education levels was decreased. Occupation became two levels solely differentiating
on the basis of whether the individual was a full- versus part-time arbitrator. Clearly,
some precision is lost by the recoding, but it does retain the major significant

relationships. The correlation matrix, with all variables in their original coding scheme,

71

is thus the principal means or examining the relationships with the log-linear model

providing support for the decision involving the selection of the independent variables.

Two-Category Decision Model

Table 4.3 represents the two-category correlation matrix. It appears that the
relationship between the award and the independent variables is extremely weak. One
can infei that, based on the largest correlation coefficient of -.0744 (age), little of the
variance is explained by this or any of the other independent variables. The sole
independent variable to meet the .05 significance level or less criterion ls age (p =
.002). Age may be negatively related to the decision, that is, the older the arbitrator,
the more likely he is to sustain the penalty.

Falling within the .30 and .40 significance levels for the practitioner model are
caseload (p = .202), NAA membership (p = .243), and education (p = .377).
Experience and residence location are the two variables initially excluded, while
occupation is tentatively excluded. Caseload and age are correlated at the .003 level
while caseload and education plus caseload and NAA membership are correlated at the
.000 level. The direction of the sign suggests that the older an arbitrator is, the less
likely he is to have a high caseload. Furthermore, arbitrators with higher caseloads are

more likely to have legal training and be NAA members.

72

 

 

 

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73

In the two-category log-linear model, five of the independent variables are
correlated with the award at the .30 level or less. Age (p = .0245), experience
(p = .2377), caseload (p = .0797), education (p = .0422), and occupation (p = .2449)
initially qualify as candidates for the .30 level of significance for the practitioner model.
NAA (p = .4304) is outside the stipulated boundaries but is included because of its
significance in the correlation matrix.

Table 4.4 reveals the significant interactions among the independent variables.
Caseload seems to have the least significant interaction effects among the independent
variables, while with the exception of interactions between age and occupation and
education and occupation, interactions with experience are the most highly correlated.
Occupation appears to be significantly related to the other five independent variables
and should not be considered further. Thus, as indicated by the significance levels in
the correlation matrix, the decision to eliminate experience, residence location, and
occupation also is supported by the log-linear results. Because the direction of the
correlation signs do not conflict with expectations, age, caseload, education, and NAA
membership are used as the independent variables testing the two-category decision

model.

Three-Category Decision Model

Table 4.5 displays the correlation matrix for the three-category decision model.
Age (p = .000) is again the sole independent variable to meet the .05 significance
requirement, but caseload (p = .074) satisfies the .10 significance level requirement
Experience (p = .170), residence location (p = .115), and NAA affiliation (p = .252)

meet the requirements of the .10, .20, or .30 levels of significance for the practitioner

74

model. As in the two-category matrix, the direction of the signs are the same; the

largest correlation coefficient of -.0955 (age) again suggests the explanatory power of

the equation is small.

Table 4.4

Significant Interactions Among Age, Education, Experience,
Caseload, NAA Membership, And Occupation

 

 

 

Paifial

Interaction Chi-square p =

AGE * EXPERIENCE * CASELOAD 15.132 .0566
AGE 9 EXPERIENCE * NAA 13.826 .0079
AGE * EXPERIENCE 420.946 .0000
AGE * CASELOAD 363.971 .0000
EXPERIENCE * CASELOAD 379.271 .0000
AGE * EDUCATION 460.024 .0000
EXPERIENCE * EDUCATION 569.193 .0000
CASELOAD * EDUCATION 350.649 .0000
AGE * NAA 52.563 .0000
CASELOAD * NAA 48.922 .0000
EDUCATION * NAA 151.856 .0000
AGE * OCCUPATION 246.116 .0000
EXPERIENCE * OCCUPATION 222.890 .0000
CASELOAD * OCCUPATION 42.670 .0000
EDUCATION * OCCUPATION 1241.855 .0000
NAA * OCCUPATION 81.433 .0000

 

75

 

 

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76

There is a much greater degree of correlation between the independent variables
within the three-category than within the two-category decision model. All five of the
significant independent variables are correlated with each other at the .045, .003, or .000
levels.

The log-linear model indicates five of the seven independent variables are
directly related to the decision. These results differ from the correlation matrix findings
in that education is significant, but NAA membership (p = .417) is not significant.
Although outside the stipulated minimum level of significance, NAA membership is close
enough to the .40 level to merit examination. Within the .30 level of significance for the
practitioner model are age (p = .0563), education (p = .0818), residence location
(p = .1885), caseload (p = .2087), and experience (p = .2336).

Table 4.6 shows the significant interactions among these independent variables.
Caseload and NAA affiliation appear to have the least interaction effects with the other
variables. With the exception of the interaction between education and residence
location, experience is consistently the most highly c0rrelated variable. Since
experience and NAA affiliation have the two lowest correlations with the dependent
variable, they will be eliminated. Age, caseload, and residence location thus are

selected to examine the three-category model.

77
Table 4.6

Significant Interactions Among Age, Education,
Experience, Caseload, NAA Membership,
And Residence Location

 

 

Par‘tia'ii

Interaction Chi-square p =

NAA * AGE * EXPERIENCE 14.471 .0059
AGE * EXPERIENCE * CASELOAD 14.513 .0693
EXPERIENCE * CASELOAD * RESIDENCE LOCATION 23.615 .0027
NAA * AGE 52.461 .0000
AGE ‘ EXPERIENCE 418.102 .0000
NAA * CASELOAD 49.404 .0000
AGE * CASELOAD 363.913 .0000
EXPERIENCE * CASELOAD 380.435 .0000
NAA * EDUCATTON 152168 .0000
AGE * EDUCATTON 458.900 .0000
EXPERIENCE * EDUCATION 570.350 .0000
CASELOAD * EDUCATION 353.554 .0000
NAA * RESIDENCE LOCATION 22.345 .0000
AGE * RESIDENCE LOCATION 104.088 .0000
EXPERIENCE * RESIDENCE LOCATION 486.396 .0000
CASELOAD 1' RESIDENCE LOCATION 27.010 .0000
EDUCATTON * RESIDENCE LOCATION 507.506 _ .0000

 

ANALYSIS
Logit parameters are interpreted similarly to additive ordinary least squares
regression coefficients. Positive beta values suggest the independent variable or
interaction increases the odds on the dependent variable, and negative coefficients
indicate a reduction in the odds (Knoke and Burke, 1980). The significant logit
estimates for the two- and three-category models shown in Tables 4.7 and 4.8 indicate
neither main effects nor interactions were significant in the two-category decision model.

Interaction and main effects involving age were the strongest, but none approached the

78
.40 level of significance. Therefore, age, education, caseload, and NAA membership
were not predictive of the decision to sustain or modify/revoke the discharge penalty.

From Table 4.7 it can be seen that in the three-category model the only main
effect reaching significance was between age and the decision to sustain the penalty.
The youngest arbitrator group, less than 41 years old, had a lesser likelihood of
sustaining the penalty (p < .30). A relatively stronger relationship (p < .20) existed for
arbitrators between the ages of 51 and 60 who were the most likely group to sustain
the penalty.

Table 4.8 represents the interaction effects. Three-way interactions can be
interpreted several ways. For the PENALTY-MODIFIED x SOUTHEAST x 51 - 60 YEARS
OLD interaction (p < .40), the results suggest that an arbitrator who is between 51 and
60 years old Is less likely to modify the penalty if he is living in the southeast versus
outside the southeast. Alternatively, the likelihood of an arbitrator living in the southeast
modifying the penalty is decreased if he ls between 51 and 60 years rather than

younger or older.

Table 4.7

Significant Logit Estimates For Main Effects Of Discharge
Awards For Two- And Three-Category Models
(z-values in parentheses)

 

 

 

 

 

 

m Two-Cae—gory Tl'iris-TCEEg—ory—
Matiable M M
PENALTY-SUSTAINED x LESS THAN 41 - . *

YEARS OLD (1.066)
PENALTY-SUSTAINED x 51 - 60 YEARS 2530*“

OLD (1.604)
9 Significant at the .40 level (2 an = 0.84).
*‘ Significant at the .30 level (Zalz = 1.035).

m Significant at the .20 level (2a,, = 1.28).

79

The two four-way interactions, PENALTY-SUSTAINED x 26 - 30 CASES x

SOUTHEAST x LESS THAN 41 YEARS OLD (p < .40) and PENALTY-SUSTAINED x 28 -

30 CASES x SOUTHEAST x 51 - 60 YEARS OLD (p < .30), are extremely difficult to

interpret. There are at least six different alternatives for each of these interactions. For

PENALTY-SUSTAINED x 26 - 30 CASES x SOUTHEAST x LESS THAN 41 YEARS OLD,

they might be:

(1)

(2)

(3)

(4)

(5)

(6)

Arbitrators with the lowest caseloads in the southeast are more likely to
sustain the discharge if they are less than 41 years old than are older
arbiters.

Arbitrators with the lowest caseloads who are less than 41 years old are
more likely to sustain the penalty if they live in the southeast rather than
outside the southeast.

Arbitrators less than 41 years old in the southeast are more likely to
sustain the penalty if they have issued 26 - 30 awards than arbitrators
with more than 30 decisions.

Arbitrators with the lowest caseloads are more likely to sustain the penalty
if they live in the southeast and are less than 41 years old than arbitrators
who live outside the southeast or are older.

Arbitrators living in the southeast are more likely to sustain the discharge
if they are less than 41 years old and have rendered 26 - 30 awards than
arbitrators who are older or have recorded more than 30 decisions.
Arbitrators less than 41 years old are more likely to sustain the penalty

if they live In the southeast and have decided between 26 and 30 cases

80

than arbitrators living outside the southeast or having more than 30

awards.
A further examination of the sample data reveals that the significance of this comparison
may result from the small number of arbitrators less than 41 years old. There are only
two individuals in this age group, both residing in the northeast; one has decided 26 -
30 cases while the other has rendered 31 - 35 awards. The arbitrator with the greater
caseload also is more likely to sustain the penalty. Consequently, as a result of the
nature of the fitted marginals, the most likely interpretation is that arbitrators who are
less than 41 years old and have decided fewer than 31 cases are more likely to sustain

the discharge if they live in the southeast rather than outside the southeast.

Table 4.8

Significant Logit Estimates For Interaction Effects Of Discharge
Awards For Two- And Three-Category Models
(z-values in parentheses)

 

 

 

 

 

 

1m Two-Cite_gory Tfi'reT-Cifegory

Variable Jndal Modal

PENALTY-MODIFIED x SOUTHEAST x - .2196“
51 - 60 YEARS OLD (1.031)

PENALTY-SUSTAINED x 26 - 30 CASES 3766*
x SOUTHEAST x LESS THAN 41 (0.982)
YEARS OLD

PENALTYSUSTAINED x 26 - 30 CASES - .3177“
x SOUTHEAST x 51 - 60 YEARS (1.188)
OLD

* Significant at the .40 level (2 lair,2 = 0.84).

** Significant at the .30 level (2a,; = 1.035).

«- Significant at the .20 level (zar,2 =- 1.28)-

 

81

For the PENALTY-SUSTAINED x 26 - 3O CASES x SOUTHEAST x 51 - 60 YEARS

OLD interaction, similar interpretations might be made:

(1)

(2)

(3)

(4)

(5)

(6)

Arbitrators with the lowest caseloads in the southeast are less likely to
sustain the discharge if they are between 51 and 60 years old than are
younger or older arbiters.

Arbitrators with the lowest caseloads who are between 51 and 60 years
old are less likely to sustain the penalty if they live in the southeast than
outside the southeast.

Arbitrators between the ages 51 and 60 in the southeast are less likely
to sustain the penalty if they have issued 26 - 30 awards than arbitrators
with more than 30 decisions.

Arbitrators with the lowest caseloads are less likely to sustain the penalty
if they live in the southeast and are between 51 and 60 years old than
arbitrators who live outside the southeast or are younger or older.
Arbitrators living in the southeast are less likely to sustain the discharge
if they are between 51 and 60 years old and have rendered 26 — 30
awards than arbitrators outside this age category or with more than 30
decisions.

Arbitrators within the 51 - 60 age group are less likely to sustain the
penalty if they live in the southeast and have decided 26 - 30 cases than

arbitrators living outside the southeast or with more than 30 awards.

In this instance, further examination of the sample set is futile. The interactions are too

complex and involve most, if not all, of the arbitrators. Hence, it is virtually impossible

to surmise which of the interpretations is more likely.

 

82
From the above it is clear that, from a statistical interpretation based on the .10

level, arbitrators’ biographical characteristics are predictive of neither the two- nor three-
category decision model. Between the .20 and .40 levels of significance of the
practitioner's model, however, there is some indication that (1) an arbitrator's age may
increase or decrease the possibility the penalty will be sustained, (2) residence location
and age interact to reduce the likelihood the penalty will be modified, and (3) caseload,
residence location, and age also interact to enhance or reduce the likelihood the
penalty will be sustained. In terms of the hypotheses stated in the previous chapter,
the conclusions are:
H (1): There is no significant relationship between age and the discharge
decision.
For all significance levels of the two-category decision model and
for the .10 level of significance of the three-category decision
model, the hypothesis is not rejected.
At the .20, .30, and .40 levels of significance in the three-category
decision model, the hypothesis is rejected.
H (2): There is no significant relationship between experience and the discharge
decision.
For all significance levels of the two- and three-category decision
models, the years of experience hypothesis is not rejected.
For all significance levels of the two-category decision model and
for the .10 level of significance of the three-category decision

model, the caseload experience hypothesis is not rejected.

 

 

83

At the .30 and .40 levels of significance in the three-category
decision model, the caseload experience hypothesis is rejected.
H (3): There is no significant relationship between education and the discharge
decision.
For all significance levels of the two- and three-category decision
models, the hypothesis is not rejected.

H (4): There is no significant relationship between residence location and the

 

discharge decision.
For all significance levels of the two—category decision model and
for the .10 level of significance of the three-category decision
model, the hypothesis is not rejected.
At the .30 and .40 levels of significance in the three-category
decision model, the hypothesis is rejected.
H (5): There is no significant relationship between professional affiliation and the
discharge decision.
For all significance levels of the two- and three-category decision
models, the hypothesis is not rejected.
H (6): There is no significant relationship between occupation and the discharge
decision.
For all significance levels of the two- and three-category decision
models, the hypothesis is not rejected.
H (7): There is no significant relationship between gender and the discharge
decision.

This hypothesis could not be tested.

84

In the next chapter the theoretical and applied implications of the research findings

reported above and possible directions of future research will be discussed.

CHAPTER V
SUMMARY, CONCLUSIONS, AND IMPLICA'ITONS

The purpose of this research was to investigate the predictive capabilities of
arbitrator biographical characteristics in discharge cases. The specific objectives of this
study were (1) to analyze empirically the effects and interactions of age, years of arbitral
experience, caseload, education, occupation, residence location, NAA affiliation, and
gender with respect to the two- and three-category decision models, and (2) to examine
these effects and interactions from both a researcher's and a practitioner’s viewpoints.
Chapter II summarized prior studies of biographical characteristics and arbitrator
behavior. Chapter III described the data and methodology used in the analysis.
Chapter IV provided an analysis and interpretation of the findings. In the next section

the more important results of the analysis will be reviewed.

Summary

From the standpoint of predicting the award direction based on arbitrator
biographical characteristics at an .10 or less level of significance, neither the two- nor
the three-category decision model was effective. Main and interaction effects were
negligible, and no independent variable approached the required significance level.

Furthermore, the practitioner models, testing the .20, .30, and .40 levels of significance,

 

 

86

failed to yield significant results in the two-category decision model. Age approached
the .40 level as a main effect but did not achieve it.

Different results were observed for the practitioner approach in the three-
category decision model. With regard to age, an arbitrator less than 41 years old was
less likely (p < .30) to sustain the discharge penalty than one 41 years or older. Also,
an arbitrator in the less than 41 age category was involved in an interaction effect with
residence location (southeast) and caseload level (26 - 30 cases) resulting in an
increased likelihood (p < .40) of sustaining the penalty. Thus, in general, arbitrators
less titan 41 years old had a decreased likelihood of sustaining the discharge unless
they also fell within the interaction relationship with the southeast and the lowest
caseload category.

A second age group, the 51 - 60 year old arbitrators, also was significant and
had the greatem likelihood (p < .20) of sustaining the penalty. This age category,
however, was involved in an interaction effect with residence location (southeast)
leading to a decreased likelihood that they would reinstate the grievant with no or
partial backpay. Finally, the 51 - 60 year old arbitrator entered into one further
interaction effect with the caseload (26 - 30 cases) and residence location (southeast)
categories that concluded with a reduced likelihood (p < .30) that the arbiter would
sustain the penalty. Hence, an arbitrator between the ages of 51 and 60 years had a
greater chance of sustaining the discharge unless he was within the interaction effects
of residence location and caseload, at which point he became less likely to sustain the
penalty. In terms of the odds that this age group would modify the penalty, this was

less likely when the residence location interaction was present.

 

87
CONCLUSIONS AND IMPLICATIONS

Suggestions for the Traditional, Statistical Researcher

In the two-category decision model, there were no significant independent
variables at any of the acceptable levels. This suggests Ashenfelter's (1987) and Cain
and Stahl's (1983) assertions that the parties eliminate arbitrators with historical records
unfavorable to one’s position is true in terms of “win-loss" tallies. It further supports
Dworkin’s (1974) belief that arbitrators are able to ignore personal values which conflict
with the agreement between the parties.

The outstanding feature of this research, however, was that the practitioner
model approach had some validity if the party wished only to gain an advantage,
however small. It suggests that, if the parties are willing to accept a less stringent level
of significance, several biographical characteristics may be important in the three—
category decision model. Age, caseload, and residence location were significant at the
.40 or less level, corroborating Bazerman and Farber’s (1985) findings that the
fashioning of an award differs even among a homogeneous group of arbiters presented
with identical facts. Thus, one of this study’s conclusions is that, among a
heterogeneous sample of arbitrators, differentiation between awards occurs in the
fashioning of the remedy of reinstatement for the three-category decision model.

As observed by Block and Stieber (1987), differences in awards appear when
a four-category award index is used rather than when a sustained or revoked/modified
approach is taken. A major conclusion of this study is that a three- or four-category
decision model can be developed to assist practitioners in selection. At the .05
significance level, the results possibly might be significant, but it is doubtful. At the .10

to .40 levels, the interactions of a three- or a four-category approach should be .

 

88
significant. A saturated, hierarchical model is inappropriate. Interactions, representing
”blends" of biographical characteristics, are more important than main effects. Age,
residence location, and caseload displayed significant interaction effects in the three-
category model and should be studied further; a four-category model may reveal more
significant relationships among other biographical characteristics.

In Table 5.1 the distribution of awards among decision categories for individual
arbitrators provides further support for research into at least a three-category decision
model. It shows that several arbitrators appear to be very different from the aggregate.
For example, arbitrators 1, 2, 6, 7, 9, 13, 19, 22, and 27 are well below the 51.7%
penalty-sustained rate of the sample set. Arbitrators 25, 26, 29, 31, 33, 34, 38, 40, and
42 are well above the average penalty-sustained rate. The rate of revoking the penalty
is much lower for arbitrators 8, 15, 29, 32, 33, 36, and 38 than the 17.3% norm; for
arbitrators 2, 3, 13, 22, 35, and 39, the opposite is true. Looking at the likelihood for
modifying the penalty, arbitrators 2, 3, 11, 18, 26, 33, 34, 38, 40, and 42 are well below
the group norm, while arbitrators 1, 7, 9, 13, 16, 23, 27, 28, and 36 are above the

mean.

 

 

89
Table 5.1

Distribution 01 Awards Among Individual Arbitrators For Three-Category Awards
(Percentage in parentheses)

 

 

 

 

 

 

PeTalI‘y— Penéfi- m-

. .. H I I ma
1 12 (38.7%) 13 (41 .911.) 8 (19.4%) 31
2 13 (38.1 ) 5 ( 13.9) 18 (50.0) 38
3 11 (423) 3 (11.5) 12 (48.2) 28
4 32 (59.3) 13 (24.1 ) 9 (18.7) 54
5 18 (59.3) 7 (25.9) 4 (14.8) 27
8 10 (37.0) 10 (37.0 ) 7 (25.9 ) 27
7 7 (25.9) 12 (44.4) 8 (29.8) 27
8 21 (58.8) 14 (37.8) 2 ( 5.4) 37
9 29 (38.7) 34 (43.0) 18 (20.3) 79
10 19 (55.9) 10 (29.4) 5 (14.7) 34
11 15 (80.0) 4 (18.0) 8 (24.0) 25
12 29 (43.9) 24 (38.4) 13 (19.7) 88
13 8 (229) 17 (48.6) 10 (28.8) 35
14 18 (529) 8 (23.5) 8 (23.5) 34
15 87 (56.8) 45 (38.1 ) 8 ( 5.1 ) 118
18 21 (48.8) 18 (41.9) 4 ( 9.3) 43
17 18 (50.0) 10 (31.3) 8 (18.8) 32
18 19 (55.9) 8 (17.8) 9 (28.5) 34
19 10 (35.7) 11 (39.3) 7 (25.0) 28
20 17 (54.8) 9 (29.0) 5 (18.1 ) 31
21 14 (424) 11 (33.3) 8 (24.2) 33
22 15 (40.5) 9 (24.3) 13 (35.1 ) 37
23 18 (47.1 ) 18 (47.1 ) 2 ( 5.9) 34
24 31 (50.0) 23 (37.1 ) 8 (129) 82
25 25 (825) 10 (25.0) 5 (125) 40
28 24 (88.7) 7 (19.4) 5 (139) 38
27 8 (30.8) 12 (46.2) 8 (23.1 ) 28
28 14 (45.2) 14 (452) 3 ( 9.7) 31
29 18 (821 ) 10 (34.5) 1 (3.4) 29
30 18 (57.1 ) 7 (25.0 ) 5 (17.9) 28
31 19 (85.5) 7 (24.1 ) 3 (10.3) 29
32 15 (55.8) 10 (37.0) 2 ( 7.4) 27
33 44 (80.0) 9 (18.4) 2 (3.6) 55
34 19 (87.9) 5 (17.9 ) 4 (14.3) 28
35 13 (48.4) 7 (25.0) 8 (28.8) 28
38 18 (48.5) 15 (45.5) 2 ( 8.1 ) 33
37 28 (50.0 ) 14 (25.0 ) 14 (25.0 ) 58
38 31 (79.5) 8 (15.4) 2 ( 5.1 ) 39
39 14 (43.8) 9 (28.1 ) 9 (28.1 ) 32
40 22 (829) 7 (20.0) 8 (17.1 ) 35
41 14 (51.9) 10 (37.0 ) 3 (11.1 ) 27
42 19 (73.1 ) 3 (11.5) 4 (15.4) 28
43 11 (423) 10 (38.5) 5 (192) 28
44 19 (59.4) 8 @501 5 (15.8) 32
ngl‘ 855 (514%,) 512431.011.) 286 (17.394) 1853

 

Four decisions were missing.

 

 

 

90

From Table 5.1, it appears individual differences between arbitrators do exist and
may be lost in the general analysis. Perhaps the research design and methodology
need to be altered. Stratified random sampling would seem more appropriate in order
to evenly distribute the arbitrators within the various biographical characteristics to be
studied. Also, the region of the country and gender variables need to be more fairly
represented. Age, education, and NAA affiliation would also benefit from stratified
random sampling. Finally, such an approach would generate a sample of arbitrators
who would more accurately fit normal perceptions of experience in terms of years of
arbitral experience and caseload.

Logit analysis should be reconsidered as the analysis technique. The use of
more than two independent variables renders their interactions with the dependent
variable virtually impossible to interpret with any confidence. One alternative would be
to classify arbitrators into one of the award categories using some acceptable strategy.
Cluster classification is a possibility. Or, classification could be based on how the
individual arbitrator's awards fall within specific hypotheses. For example, one
hypothesis could be that an arbitrator who sustains the discharge penalty in more than
33.3% of his/her awards be classified in the Penalty-sustained category of the three-
category model. Using the same philosophy, one could argue that, regardless of
whether a two-, three-, or four-category model is being tested, this percentage should
be 50% instead of 33.3% because an arbitrator makes one of two choices in a
discharge case - to sustain the penalty or to revoke and/or modify the penalty. Once
all arbitrators are classified, discriminant analysis could then be used to examine the
differences between the groups and to test the characteristics of the groups comprising

the extremes (Penalty-sustained and Penalty-revoked as one group) versus the middle

 

 

91
group(s) (either Penalty-modified or a four-category model breaking Penalty-modified
into Penalty-modified-no backpay and Penalty-modified-partial backpay).

In general this study confirms that, from a strict statistical perspective,
biographical characteristics are not predictive of awards in discharge cases. The type
of sample chosen consisted of relatively experienced to very experienced arbitrators
which limits the application of these conclusions to the arbitrator population as a whole.
Also, the sample selected greatly underrepresented females and northwestern
arbitrators. The age distribution further contributed a limiting factor to any
generalization. The number of arbitrators should be greatly increased and their
characteristics more indicative of the general arbitrator population. Finally, the
practitioner model does suggest that the relationship between biographical
characteristics and the three- or four-category decision models should be investigated

in more depth.

Suggestions for the Practitioner

There are several biographical characteristics the parties have indicated were
important in selection and acceptability, but were not supported by the findings of this
study. Education, occupation, years of arbitral experience, and membership in the NAA
were never important factors in whether the arbitrator upheld the discharge or reinstated
the grievant with no, partial, or full backpay. Age, residence location, and caseload do
appear to have some impact on the direction of the award, and, if employers and
unions wish to maximize their potential to 'win' the case, they should reconsider their

selection strategies to reflect the following:

 

 

 

92

EMPLOYERS: Employers should prefer arbitrators who are 51 - 60 years old
since this age group is the most likely to sustain the penalty. Within this
age group, an arbitrator who resides in the southeast rather than in the
northeast or southwest is more likely to uphold the discharge. It also is
believed, based on this researcher's interpretation of the significant
Interaction effects, that an arbitrator meeting the above requirements and
having decided more than 30 cases will be more receptive to the
employer stance. Arbitrators within this age group, but who live outside
the southeast and have rendered 26 - 30 decisions are believed to be
less likely to sustain the discharge.

There are little data upon which to base conclusions concerning
younger arbitrators (less than 41 years old), and thus little confidence
should be placed upon the following interpretation. Younger arbitrators
should be avoided because they are the least likely age group to sustain
the penalty. Within this age group, arbitrators living in the southeast and
deciding 26 - 30 cases are preferred to arbitrators in this age group who
live in the northeast and have decided 26 - 30 cases.

UNIONS: Unions have fewer positive prospects than employers since the
strategy indicated is primarily an avoidance rather than a positively-
oriented selection tactic. They should eliminate arbitrators who are in the
51 - 60 years old age group Mg the arbitrator also lives outside the
southeast. If the arbitrator meets an additional third requirement of
having decided fewer than 31 cases, the union will have maximized its

chance of having theidischarge modified or revoked.

93

The union also may attempt to select a younger arbitrator,
although the data concerning this age group are limited and conclusions
are mainly speculative best guesses. Arbitrators who are less than 41
years old seem to be more conducive to reinstatement decisions than
arbitrators 41 years or older. Also, within this age group, arbitrators living
outside the southeast (probably the northeast) who have rendered fewer
than 31 decisions are more favorably disposed to reinstate the grievant

than arbitrators with at least 31 decisions.

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