Adoption and Use of Dispute Resolution Procedures in the Nonunion Workplace

[Excerpt] This paper investigates the adoption, structure, and function of dispute resolution procedures in the nonunion workplace. Whereas grievance procedures in unionized workplaces have been an important area of study in the field of industrial relations, research on dispute resolution procedures in nonunion workplaces has lagged behind. As a result, our knowledge of the development of nonunion procedures remains relatively limited. Similarly, with a few noteworthy exceptions (e.g. Lewin, 1987, 1990), our knowledge of workplace grievance activity is almost entirely based on research conducted in unionized settings. Given the major differences in the institutional contexts of union and nonunion workplaces in the United States, existing ideas about workplace dispute resolution developed in the unionized setting will likely require significant modification in order to understand dispute resolution procedures and activity in the nonunion workplace. Issues relating to dispute resolution in the nonunion workplace are of increasing importance to public policy given the combination of continued stagnation in levels of union representation and mounting concerns over rising levels of employment litigation in the courts. Knowing what nonunion dispute resolution procedures look like and how they function will help answer the question of what role these procedures may play in the future governance of the workplace

Organizational Primacy after the Demise of the Organizational Career: Employment Conflict in a Post-Standard Contract World

[Excerpt] There is a contradiction at the heart of dispute resolution in the contemporary workplace. The locus of determination of the terms and conditions of employment, including processes for the resolution of disputes concerning these terms and conditions, has become increasingly decentralized to the organizational level, at the same time that long term attachment of employee careers to these same organizations has been diminishing. The result is a disconnect between the nature of current employment disputes, which increasingly involve issues relating to entry to and exit from relationships with organizations, including questions of the formation and content of employment contracts, and dispute resolution procedures that assume membership within an organizational community and acceptance of its rules and norms. In this paper, I examine these two trends in employment dispute resolution and explore the tensions between them. I begin by discussing the increase in organizational ordering of terms and conditions of employment and how it is reflected in the development of organizationally focused dispute resolution mechanisms. Then I turn to examining examples of types of growing employment conflicts that revolve around issues relating to the formation and termination of employment relationships. Following this, I conclude by discussing how dispute resolution procedures and systems might be re-envisioned to better fit a world in which standard long-term employment contracts with a single organization are no longer the paradigmatic model

Participation Versus Procedures in Non-Union Dispute Resolution

This study examines the resolution of conflict in non-union workplaces. Employee participation in workplace decision making and organizational dispute resolution procedures are two factors hypothesized to influence the outcomes of conflicts in the non-union workplace. The adoption of high involvement work systems is found to produce an organizational context in which both triggering events for conflict, such as disciplinary and dismissal decisions, and dispute resolution activities, such as grievance filing and appeals, are reduced in frequency. Dispute resolution procedures have mixed impacts. Greater due process protections in dispute resolution procedures in non-union workplaces are associated with increased grievance filing and higher appeal rates but do not have significant impacts on the precursors to conflict. This study provides evidence of substantial organizational level variation in non-union conflict resolution, suggesting the importance of expanding the predominant individual and group-level focus of current conflict management research to include more organizational-level factors. It also supports the importance to non-union employee representation of direct participation strategies involving employee involvement in the workplace, in addition to procedures that provide for off-line representation

[Review of the Book \u3ci\u3eWorkplace Justice Without Unions\u3c/i\u3e]

[Excerpt] This book examines one of the most important issues in contemporary industrial relations in the United States, the provision of workplace justice to the vast majority of American workers who lack union representation. In contrast to nearly all other countries, employment in the United States is governed by the default rule of employment-at-will under which workers can be fired without notice for any reason, good or bad. Exceptions to this rule are limited to specific contractual or statutory protections in areas such as discrimination and the shrinking segment of the American workforce represented by unions. The situation for the majority of American workers who are not represented by unions and fired for reasons other than discrimination is aptly described by the authors: “Where workers can be terminated from their employment for any reason, or none at all, arbitrariness reigns. Yet this is historically the basic principle of the law of employment termination in the United States.” (p.1) As a result of this absence of general legal protections against unjust termination, such as the labor court systems found in many other countries, in the United States discussion of questions of workplace justice have increasingly focused on various types of management-initiated workplace justice systems. In this book, the authors provide both a concise, well-written overview of the current legal and policy issues relating to nonunion workplace justice and an important empirical contribution to the growing literature on this subject

Institutional Pressures, Human Resource Strategies, and the Rise of Nonunion Dispute Resolution Procedures

The author investigates factors influencing the adoption of dispute resolution procedures in the nonunion workplace. Various explanations are tested using data from a 1998 survey of dispute resolution procedures in the telecommunications industry. The results suggest that both institutional pressures and human resource strategies are factors driving the adoption of nonunion procedures. Among institutional factors, rising individual employment rights litigation and expanded court deferral to nonunion arbitration have led to increased adoption of mandatory arbitration procedures in the nonunion workplace. At the same time, an older institutional factor—union substitution by nonunion employers aimed at avoiding union organizing—continues to inspire the adoption of nonunion dispute resolution procedures, especially peer review. Finally, the results provide some support for a link between the use of high performance work systems and the adoption of nonunion dispute resolution procedures

[Review of the Book \u3ci\u3eWhy the Garden Club Couldn’t Save Youngstown: The Transformation of the Rust Belt\u3c/i\u3e]

[Excerpt] As economic crisis once again grips the land, it is valuable to ponder the lessons of attempts to recover from past downturns. For example, the economic dislocations of the 1970s and 1980s transformed the industrial heartland of America into the “Rust Belt” and forced communities to grapple with how to recover from a lost standard of living revolving around good paying jobs in industries like steel production that were unlikely ever to return. In his interesting and highly readable book, Sean Safford examines the diverging economic trajectories of two similar rust belt communities, Allentown, Pennsylvania, and Youngstown, Ohio. Both had grown prosperous as centers of the steel industry through the mid-20th century and both fell on hard times with the contraction of that industry in the 1970s and 1980s. After the 1980s, however, Allentown recovered while Youngstown remained mired in depression. Safford sets out to explain the puzzle of why these two communities, seemingly so similar, ended up on such different trajectories

An Empirical Study of Employment Arbitration: Case Outcomes and Processes

Using data from reports filed by the American Arbitration Association (AAA) pursuant to California Code requirements, this article examines outcomes of employment arbitration. The study analyzes 3,945 arbitration cases, of which 1,213 were decided by an award after a hearing, filed and reaching disposition between January 1, 2003 and December 31, 2007. This includes all the employment arbitration cases administered nationally by the AAA during this time period that derived from employer-promulgated arbitration procedures. Key findings include: (1) the employee win rate amongst the cases was 21.4%, which is lower than employee win rates reported in employment litigation trials; (2) in cases won by employees, the median award amount was $36,500 and the mean was$109,858, both of which are substantially lower than award amounts reported in employment litigation; (3) mean time to disposition in arbitration was 284.4 days for cases that settled and 361.5 days for cases decided after a hearing, which is substantially shorter than times to disposition in litigation; (4) mean arbitration fees were $6,340 per case overall,$11,070 for cases disposed of by an award following a hearing, and in 97 percent of these cases the employer paid 100 percent of the arbitration fees beyond a small filing fee, pursuant to AAA procedures; (5) in 82.4 percent of the cases, the employees involved made less than $100,000 per year; and (6) the mean amount claimed was$844,814 and 75 percent of all claims were greater than $36,000. The study also analyzes whether there is a repeat player effect in employer arbitration. The results provide strong evidence of a repeat employer effect in which employee win rates and award amounts are significantly lower where the employer is involved in multiple arbitration cases, which could be explained by various advantages accruing to larger organizations with greater resources and expertise in dispute resolution procedures. The results also indicate the existence of a significant repeat employer-arbitrator pairing effect in which employees on average have lower win rates and receive smaller damage awards where the same arbitrator is involved in more than one case with the same employer, a finding supporting some of the fairness criticisms directed at mandatory employment arbitration

The Impact of Case and Arbitrator Characteristics On Employment Arbitration Outcomes

[Excerpt] A major development in systems for the enforcement of individual employment rights is the use of alternative dispute resolution (ADR) procedures to resolve claims by employees. At their best, ADR procedures may hold the potential for greater accessibility by employees to enforcement of substantive employment rights, while avoiding burdens of excessive costs for the public and employers in processing claims. On the other hand, ADR procedures, particularly mandatory employment arbitration procedures, have also been criticized for producing the privatization of justice and denial of effective enforcement of employee rights. In this paper, we present the results of a new empirical study of employment arbitration. Despite the growing importance of employment arbitration in the workplace, empirical research on this phenomenon remains in its infancy and views on arbitration are often characterized by assumptions and anecdotal impressions. In the analysis presented here we attempt to systematically examine some of the common assumptions about the decision-making of employment arbitrators. In particular, we examine three propositions that are often injected into discussions of arbitral decision-making: 1) Arbitrators will tend to favor compromise decisions, proverbially “splitting the baby” between the two parties. 2) Arbitrators will be less inclined to award very large damage claims of the type more sometimes seen in jury decisions. 3) Arbitrators will prefer to award at least some small, token amount of damages to a party bringing a case rather than deny any recovery. We analyze these propositions using a unique dataset developed from analysis of employment arbitration case files of the American Arbitration Association (AAA), arguably the leading provider of employment arbitration services in the country

Individual Employment Rights Arbitration in the United States: Actors and Outcomes

The authors examine disposition statistics from employment arbitration cases administered over an 11-year period by the American Arbitration Association (AAA) to investigate the process of dispute resolution in this new institution of employment relations. They investigate the predictors of settlement before the arbitration hearing and then estimate models for the likelihood of employee wins and damage amounts for the 2,802 cases that resulted in an award. Their findings show that larger-scale employers who are involved in more arbitration cases tend to have higher win rates and have lower damage awards made against them. This study also provides evidence of a significant repeat employer-arbitrator pair effect; employers that use the same arbitrator on multiple occasions win more often and have lower damages awarded against them than do employers appearing before an arbitrator for the first time. The authors find that self-represented employees tend to settle cases less often, win cases that proceed to a hearing less often, and receive lower damage awards. Female arbitrators and experienced professional labor arbitrators render awards in favor of employees less often than do male arbitrators and other arbitrators

Comparing Mandatory Arbitration and Litigation: Access, Process, and Outcomes

[Excerpt] What do we know about mandatory arbitration and its impact? Some existing studies have examined samples of employment arbitration cases, usually obtained from the American Arbitration Association (AAA), which is currently the largest arbitration service provider in the employment area. Although some early studies found relatively high employee win rates and damage awards in arbitration, comparable to those in litigation, these results were mainly based on arbitration under individually negotiated agreements or in the securities industry and involved relatively highly paid individuals. More recent studies using larger samples of cases based on mandatory arbitration agreements find much lower employee win rates and smaller damage amounts than typical in litigation. Existing studies, however, have not been able to account for differences in the types of cases that are heard in arbitration. In particular, previous work has not been able to systematically compare outcomes in arbitration and litigation in the same study. In this study, we take a new approach to investigating mandatory arbitration that allows us to do a systematic comparison of arbitration and litigation, accounting for key factors that differentiate between the types of cases brought in these forums. We do this by collecting survey data on a comparable sample of arbitration and litigation cases from attorneys involved in those cases. We also investigate the overall experiences of the attorneys in representing plaintiff employees in mandatory arbitration and litigation. The ability to obtain and finance legal representation is a crucial, yet understudied aspect of the system of enforcement of employment rights. Absent the ability to obtain effective representation, employees may be unable to pursue and win cases even where their statutory rights have been violated. One of the potential benefits held out for arbitration compared to litigation is that it could provide a cheaper, more accessible forum to allow employee claims to be heard and adjudicated. It is certainly the case that existing research indicates many limitations of the litigation system, particularly the relatively poor outcomes obtained by plaintiff employees compared to other litigants. What we are able to investigate empirically in this study is whether mandatory arbitration ameliorates some of the limitations of the litigation system or whether it is equally or even more limited in its accessibility