Did managers disregard proper procedure when they disciplined Mr. Haier? Justify your answer. How much weight should arbitrators give procedural propriety or impropriety when deciding a case like this one? Virtual Campus 9:24 PM Mon Feb 26|||BExhibit 11.11Differences betweenEmployment Arbitration,Labor Arbitration, and JurorsInvolving an EmployeeDischarge1. Burden of proof2. Acceptability3. Professionalbackground4. Considermitigatingcircumstances5. Decision6. Who pays thearbitrator●●●●EmploymentArbitrationCHAPTER 11 • Labor and Employment Arbitration 579EmployeeEmployer selectsManagement morethan likelyNot likelyLess likely employ-ee will receivea favorabledecisionUsually theemployerLaborArbitrationEmployerUnion andemployerNeutralYesMore likely toreceive favor-able decisionwhen repre-sented by aunionUsually the unionand employerpay equallyaJurorsEmployeeNoneYes2 AAPublic serviceMore likely toreceive favorabledecision than byan employmentarbitratorTaxpayers, a smallfee for jury dutyand expensesSOURCE: Brian S. Klass, Douglas Mahony, and Hoyt N. Wheeler, "Decision-making about Workplace Disputes: A Policy CapturingStudy of Employment Arbitrators, Labor Arbitrators and Jurors,” Industrial Relations, 45 (12) (2006), pp. 68–95.included 32 different case scenarios where an employee was challenging termination.Exhibit 11.11 highlights some of the significant differences between employment arbitra-tors, labor arbitrators, and jurors. Employment arbitrators, who usually have a manage-ment background, are usually selected solely by the employer and are less likely to rule infavor of the terminated employee. The employee has the burden of proof, which meansthat the employee must prove there was a violation of a company rule or policy that waswritten by the company. In addition, the employment arbitrator is not likely to considermitigating circumstances, such as long service with the company, a good work record,and so on. Because the employer pays the arbitrator to serve and is selected by theemployer, some critics of employment arbitration would say that the employment arbi-trator has allegiance to the employer.In comparison, the burden of proof in discharge cases in labor arbitration rests withthe employer. The general principle is that a person is innocent until proven guilty. Sincethe labor arbitrator is selected and paid by both parties, the labor arbitrator must have areputation of neutrality or he or she will not be selected by both parties. In addition, thelabor arbitrator may find an employee guilty of wrongdoing, but due to a good workrecord of considerable years may reduce the penalty from a termination to a disciplinarysuspension without pay. Since the burden of proof rests with the employer and a laborarbitrator considers mitigating circumstances, the employee is more likely to receive afavorable decision from the labor arbitrator.In between, in a jury trial, the employee has the burden to prove that the employerviolated the employer's rules or policies. However, since jurors will consider mitigating cir-cumstances, they are more likely to render a favorable decision for the employee than anemployment arbitrator would. Since jurors serve as a public service, they are not concernedabout acceptability and receive only a small fee for their time and reimbursement for theirexpenses.93Copyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202579/774 | Virtual Campus 9:24 PM Mon Feb 26||||=B578PART 3 ● Administering the Labor Agreement●●●●QAAonce or twice in a lifetime. First, if the employer selects the arbitrator and pays the arbi-trator for his or her services, the arbitrator may feel the pressure to rule in favor of theemployer in order to be selected in future cases. For all practical purposes, the employerand the arbitrator are the "repeat players." Second, in the selection of the arbitrator, evenwhen both parties participate in the selection, unrepresented employees have little infor-mation on which to base their selection. Even when an employee has legal counsel, theattorney may or may not have access to useful information about the arbitrator. In com-parison to a unionized setting, nearly all international unions and the American Federa-tion of Labor-Congress of Industrial Organizations (AFL-CIO) have research staff whocan obtain evaluative information about arbitrators that would be useful in selection.Third, "repeat player" employers have certain strategic advantages because they have aninstitutional memory. Employers can keep records about the disposition of prior cases ofthe arbitrator; the unrepresented employee has no comparable resource. Because theunion has a continuous relationship with the employer through the collective bargainingagreement, the union gains an institutional memory and becomes a "repeat player” inthe arbitration process.91Supporters of Mandatory Employment Arbitration. Although many scholars andprofessional groups like the NAA, and governmental agencies, like the EEOC, have con-demned mandatory arbitration arrangements, Theodore J. St. Antoine, the former presi-dent of the National Academy of Arbitrators, believes that mandatory arbitration may bea “blessing in disguise”. As a practical matter, mandatory arbitration may offer personswith small monetary claims a better opportunity to secure a remedy than a traditionallegal action. The EEOC is not the answer because it is underfunded and too overloadedwith work to try anything other than major cases.St. Antoine argues that arbitration is private, cheaper, faster, and more informalthan court litigation which is a public forum. As a result, lawyers are more willing toassist a client in an arbitration proceeding when they would not be willing to devotethe time and effort to prepare a federal court appearance. Further, without a lawyer,employees may make a reasonable presentation on their own or with the assistance of afellow employee in a much less intimidating atmosphere of arbitration. St. Antoine fur-ther argues that if the claimant sues in court, there is no reason to believe that theywould be better off than in arbitration. In fact, employees actually prevail more often inarbitration than in court. As expected, successful plaintiffs obtain larger awards fromjudges and juries, but as a group recover more in arbitration.⁹²In response to the “repeat player effect," which leads to the "repeat arbitrator effect,"supporters of mandatory employment arbitration believe that the repeat player effecttheory is based on the belief that a repeat player (the employer) chooses the same arbi-trator in several arbitration cases and therefore builds a relationship with the arbitrator,causing the arbitrator to rule in the repeat player's (the employer) favor. The researchfound no support for this theory. In the 200 cases studied, there were only two casesinvolving a second meeting between the same arbitrator and employer. On the employeeside, it may also be argued that attorneys for grievants may become repeat players asmore plaintiff attorneys accept employment arbitration assignments and as the numberof employment arbitration cases grow.Public Policy Implications for the FutureA Comparison of Decisions by Employment Arbitrators, Labor Arbitrators, andJurors in Employment Termination Cases. In a study of 225 employment arbitrators,200 labor arbitrators, and 112 jurors from a federal district court, the arbitrators and for-mer jurors were asked to participate in a fairly extensive decision-making exercise thatCopyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202578/774

Question

Did managers disregard proper procedure when they disciplined Mr. Haier?  Justify your answer.  How much weight should arbitrators give procedural propriety or impropriety when deciding a case like this one? Virtual Campus 9:24 PM Mon Feb 26|||BExhibit 11.11Differences betweenEmployment Arbitration,Labor Arbitration, and JurorsInvolving an EmployeeDischarge1. Burden of proof2. Acceptability3. Professionalbackground4. Considermitigatingcircumstances5. Decision6. Who pays thearbitrator●●●●EmploymentArbitrationCHAPTER 11 • Labor and Employment Arbitration 579EmployeeEmployer selectsManagement morethan likelyNot likelyLess likely employ-ee will receivea favorabledecisionUsually theemployerLaborArbitrationEmployerUnion andemployerNeutralYesMore likely toreceive favor-able decisionwhen repre-sented by aunionUsually the unionand employerpay equallyaJurorsEmployeeNoneYes2 AAPublic serviceMore likely toreceive favorabledecision than byan employmentarbitratorTaxpayers, a smallfee for jury dutyand expensesSOURCE: Brian S. Klass, Douglas Mahony, and Hoyt N. Wheeler, &#34;Decision-making about Workplace Disputes: A Policy CapturingStudy of Employment Arbitrators, Labor Arbitrators and Jurors,” Industrial Relations, 45 (12) (2006), pp. 68–95.included 32 different case scenarios where an employee was challenging termination.Exhibit 11.11 highlights some of the significant differences between employment arbitra-tors, labor arbitrators, and jurors. Employment arbitrators, who usually have a manage-ment background, are usually selected solely by the employer and are less likely to rule infavor of the terminated employee. The employee has the burden of proof, which meansthat the employee must prove there was a violation of a company rule or policy that waswritten by the company. In addition, the employment arbitrator is not likely to considermitigating circumstances, such as long service with the company, a good work record,and so on. Because the employer pays the arbitrator to serve and is selected by theemployer, some critics of employment arbitration would say that the employment arbi-trator has allegiance to the employer.In comparison, the burden of proof in discharge cases in labor arbitration rests withthe employer. The general principle is that a person is innocent until proven guilty. Sincethe labor arbitrator is selected and paid by both parties, the labor arbitrator must have areputation of neutrality or he or she will not be selected by both parties. In addition, thelabor arbitrator may find an employee guilty of wrongdoing, but due to a good workrecord of considerable years may reduce the penalty from a termination to a disciplinarysuspension without pay. Since the burden of proof rests with the employer and a laborarbitrator considers mitigating circumstances, the employee is more likely to receive afavorable decision from the labor arbitrator.In between, in a jury trial, the employee has the burden to prove that the employerviolated the employer's rules or policies. However, since jurors will consider mitigating cir-cumstances, they are more likely to render a favorable decision for the employee than anemployment arbitrator would. Since jurors serve as a public service, they are not concernedabout acceptability and receive only a small fee for their time and reimbursement for theirexpenses.93Copyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202579/774> | Virtual Campus 9:24 PM Mon Feb 26||||=B578PART 3 ● Administering the Labor Agreement●●●●QAAonce or twice in a lifetime. First, if the employer selects the arbitrator and pays the arbi-trator for his or her services, the arbitrator may feel the pressure to rule in favor of theemployer in order to be selected in future cases. For all practical purposes, the employerand the arbitrator are the &#34;repeat players.&#34; Second, in the selection of the arbitrator, evenwhen both parties participate in the selection, unrepresented employees have little infor-mation on which to base their selection. Even when an employee has legal counsel, theattorney may or may not have access to useful information about the arbitrator. In com-parison to a unionized setting, nearly all international unions and the American Federa-tion of Labor-Congress of Industrial Organizations (AFL-CIO) have research staff whocan obtain evaluative information about arbitrators that would be useful in selection.Third, &#34;repeat player&#34; employers have certain strategic advantages because they have aninstitutional memory. Employers can keep records about the disposition of prior cases ofthe arbitrator; the unrepresented employee has no comparable resource. Because theunion has a continuous relationship with the employer through the collective bargainingagreement, the union gains an institutional memory and becomes a &#34;repeat player” inthe arbitration process.91Supporters of Mandatory Employment Arbitration. Although many scholars andprofessional groups like the NAA, and governmental agencies, like the EEOC, have con-demned mandatory arbitration arrangements, Theodore J. St. Antoine, the former presi-dent of the National Academy of Arbitrators, believes that mandatory arbitration may bea “blessing in disguise”. As a practical matter, mandatory arbitration may offer personswith small monetary claims a better opportunity to secure a remedy than a traditionallegal action. The EEOC is not the answer because it is underfunded and too overloadedwith work to try anything other than major cases.St. Antoine argues that arbitration is private, cheaper, faster, and more informalthan court litigation which is a public forum. As a result, lawyers are more willing toassist a client in an arbitration proceeding when they would not be willing to devotethe time and effort to prepare a federal court appearance. Further, without a lawyer,employees may make a reasonable presentation on their own or with the assistance of afellow employee in a much less intimidating atmosphere of arbitration. St. Antoine fur-ther argues that if the claimant sues in court, there is no reason to believe that theywould be better off than in arbitration. In fact, employees actually prevail more often inarbitration than in court. As expected, successful plaintiffs obtain larger awards fromjudges and juries, but as a group recover more in arbitration.⁹²In response to the “repeat player effect,&#34; which leads to the &#34;repeat arbitrator effect,&#34;supporters of mandatory employment arbitration believe that the repeat player effecttheory is based on the belief that a repeat player (the employer) chooses the same arbi-trator in several arbitration cases and therefore builds a relationship with the arbitrator,causing the arbitrator to rule in the repeat player's (the employer) favor. The researchfound no support for this theory. In the 200 cases studied, there were only two casesinvolving a second meeting between the same arbitrator and employer. On the employeeside, it may also be argued that attorneys for grievants may become repeat players asmore plaintiff attorneys accept employment arbitration assignments and as the numberof employment arbitration cases grow.Public Policy Implications for the FutureA Comparison of Decisions by Employment Arbitrators, Labor Arbitrators, andJurors in Employment Termination Cases. In a study of 225 employment arbitrators,200 labor arbitrators, and 112 jurors from a federal district court, the arbitrators and for-mer jurors were asked to participate in a fairly extensive decision-making exercise thatCopyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202578/774>

Accepted Answer

i) In the case of Mr. Haier, managers may ignore proper process as they are predisposed in favor of…